Mediating workplace bullying and harassment complaints

by | Jul 31, 2018

Risk to employers of workplace bullying and harassment complaints

Workplace bullying and harassment complaints are on the rise. This is due to a number of factors such as:

/   increasing awareness of the need to complain and “call out” inappropriate behaviour

/   growing consciousness about the importance of mental health in our society

/   reduction in negative stigma associated with workplace complaints

The #MeToo and Time’s up movements have also seen women speak out against sexual harassment – initially in the film industry but these have spread quickly to become worldwide movements. The issue of sexual harassment in the workplace will continue to be under the microscope with the Australian Human Rights Commission recently launching an independent national inquiry on the issue.

Along with the rise of the number of these types of the complaints, so too are the damages that are being awarded to employees who have suffered harm – particularly for serious sexual harassment.

As such, employers are best advised to take a proactive approach to prevent and minimise workplace bullying and harassment in their workplaces. In this article, we share our advice on what to do if a complaint of this nature is made in your organisation. We also give you some tips for when to consider mediation as an option for resolving the complaint.

Types of bullying and harassment complaints

Let’s first look at the type of complaints about workplace bullying and harassment. These cover a wide spectrum of behaviours. This includes:

/   upward bullying (where a manager is bullied by a subordinate)

 institutional bullying (where the bullying arises from the structure or culture of the organisation)

/   different types of harassment (for example, sexual or racial)

/   interactions at co-worker level (where the behaviour happens between colleagues who have no formal reporting relationship).

However, the most common type of complaint is from a person about the behaviour of their direct manager or boss.

Power imbalances and value judgments

In these types of complaints there is often a disproportionate power imbalance and social dynamic at play:

/   The person making the complaint has to be brave and courageous to “stand up” to their boss

/   They often do not want to tackle the issue alone for fear of reprisal action or even the possibility of losing their job

/   They also know that making the complaint will forever change their relationship with their boss and possibly others in the organisation

/   They are likely to be worried about the personal consequences – such as not being able to pay their mortgage or damaging their career.

These types of complaints are also often driven by subjective views of what is right and wrong. To one person, their behaviour is entirely appropriate. To the other, it is not. Value judgments and assumptions are made about the other person’s personality and behaviours. The lines can be blurred.

This can make these types of complaints tricky to manage. And, if not managed correctly from the outset, there will be flow on impacts for the organisation. For example, low staff morale, reduced productivity and increased absenteeism. These types of complaints also get harder to resolve as time goes on.

Role of employer in handling the complaint

When a bullying or harassment complaint is made, the employer is faced with the initial task of determining the validity (or otherwise) of the complaint. In this sense, the employer becomes the referee – they need to find out what has happened (or not) and then decide on next steps.

Importantly, when a complaint of this nature is made it is critical that the employer does not take one side or give the impression they have done so. If this happens, then the outcome of the process is likely to be flawed. The people involved are also unlikely to accept the outcome.

The employer will need to think about how to manage the complaint. Options include internal or external investigation and mediation. Another option could be referral to the Employee Assistance Program (being confidential counselling and support services to assist employees with mental health and psychological well being).

The reality is that there is “no one size fits all” solution to these types of complaints. The solution will depend on the circumstances of the complaint including the nature and seriousness of those allegations. However, where the employer has compromised their objectivity or the complaint is “high risk”, then outsourcing to an external investigator / mediator is a good idea from the get go.

Option 1 – Investigation

If the complaint is investigated (either internally or externally), then this should be done objectively and without delay. Each employee involved should be given reasonable opportunity to participate in the process and give their side of the story. The investigator’s role is to decide whether the conduct has occurred or not, and to make findings of fact about that conduct. Consequences can then flow based on the findings of the investigation.

Option 2 – Mediation

Depending on the nature of the complaint and allegations, mediation may be considered as an option at different stages in the process. This includes:

/   immediately after the complaint is made – although success in the mediation is likely to be low as the person making the complaint may feel as they haven’t been heard and the person the subject of the complaint may feel like they haven’t had a chance to answer the case against them.

/   part way through an investigation – for example, after preparation of the investigator’s draft report and draft findings have been made.

/   after the investigation process is complete and relationships needs to be rebuilt within the workplace. Mediation may even be a direct recommendation of the investigation.

The suitability of the complaint for mediation, as well as the timing of any mediation, will depend upon a number of factors.

If you are unsure whether a complaint is suitable for mediation, then you can always call upon an independent mediator to step in and guide you. Contact our Director, Emma Broomfield, who is a nationally accredited mediator:

Emma Broomfield 

Director – Legal, Governance and Mediation

T     0421 180 881

E     emma@localeconsulting.com.au

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