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How well does your school manage incidents of staff bullying?

22/05/14
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As we’ve previously posted, bullying in schools affects teaching and non-teaching staff as well as students.

Bullying of staff can be caused by parents or other staff members including Principals.  Two recent cases in the Supreme Court and at the Fair Work Commission (‘FWC’) have highlighted the need for schools to have and follow a clear WHS policy which articulates what a school should do when an incident of bullying is reported.

Case #1

In the Sussan case an employee was awarded just under $240,000 in damages after being bullied for 11 days.  Ms Keegan was a former assistant manager at a Sussan store in Queensland who had returned to work from parental leave.  Within 11 days of her return to work, Ms Keegan suffered a serious psychiatric injury caused by the bullying and harassment of her manager.  Ms Keegan alleged that her manager’s bullying behaviour included excluding her from business management issues, continued unwarranted criticism of Ms Keegan’s performance and creating an atmosphere at the store where she felt excluded.

When Ms Keegan reported her manager’s behaviour to the Queensland Business Manager, the Business Manager informed the store manager of the complaint and told Ms Keegan to “go home and put some lippy on” and to “work it out for herself.”

The Queensland Supreme Court found that Sussan had failed to follow its own bullying and harassment policies in handling Ms Keegan’s complaint and that it had failed to train staff appropriately in how to respond and handle complaints.   The Business Manager’s lack of support for Ms Keegan and the bullying of the store manager were found to have caused Ms Keegan’s psychiatric injury.

This case is a reminder that any bullying complaint received by a school should not be treated as trivial and should be dealt with in accordance with its staff bullying policy which is a key component of its WHS program.  Does your school have a staff bullying policy?  Are all your staff trained to follow the policy? How does you school deal with reported incidents of bullying?  Does your your school follow appropriate investigation procedures?

Case #2

A recent decision by the FWC has further emphasised the importance of following dispute resolution processes and procedures when determining whether conduct was bullying conduct or conduct that constituted “reasonable management action”, which does not constitute bullying under the Fair Work Act.  This case is most relevant to a school defending a bullying action against it by a member of staff.

In the case of Ms SB [2014] FWC 2104, an employee sought orders from the FWC requiring another employee to stop her alleged bullying conduct and to also procure her employer to comply with its bullying policies and monitor behaviour in the workplace.  The complainant was herself the subject of bullying complaints, and she argued that her employer’s way of handling the complaints against her constituted unreasonable conduct which contributed towards a risk to health and safety. In fact, the applicant argued that the complaint against her should not have been given any credence by her employer.

The employer’s defence was that its handling of the complaints made against the employee constituted “reasonable management action taken in a reasonable manner”, and was not bullying.

The FWC agreed with the employer and noted that a consideration of whether management action constitutes “reasonable management action” involves an objective test applied in the context of the case, and that management actions don’t have to be perfect or ideal to be considered reasonable. Furthermore, it might be relevant to consider whether action involved a significant departure from established policies or procedures (like bullying polices) and if so, whether the departure was reasonable in the circumstances.

What does this mean for schools and their WHS policies and procedures?

Importantly it gives some guidance as to what factors might constitute “reasonable management action” in a defence against a bullying allegation made by staff.  It’s also an important reminder that a failure to follow WHS policies and procedures when dealing with bullying complaints from staff might prevent a school from successfully arguing that it has acted “reasonably” in taking certain management action against an employee.

 

 

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CompliSpace

CompliSpace is Ideagen’s SaaS-enabled solution that helps organisations in highly-regulated industries meet their governance, risk, compliance and policy management obligations.

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