Workplace mediation has received increased attention recently as a successful method to resolve conflict in the workplace and as a preferred option to tribunals and litigation, writes Saranne Segal
Workplace bullying has recently been a hot topic due to the amendments to the Fair Work Act made in January 2014,which allows employees who believe they are being bullied to apply directly to the Fair Work Commission (FWC) and apply for an order to have the bullying cease.The FWC has 14 days after receiving an application to make an appropriate order. A breach of the order can lead to penalties of up to $51,000 for a company or $10,200 for an individual.
As a workplace mediator, it never fails to surprise me that many businesses are not prepared to deal with an outbreak of conflict between two or more employees.
This leads to the question: “When is someone being bullied at work?” The Act provides that a worker is “bullied at work” if an individual or group repeatedly behaves unreasonably towards that worker and that behaviour creates a risk to health and safety. Therefore a one-off conflict, a personality clash, or an unfavourable performance review does not constitute bullying.
The distinction must obviously be made between appropriate performance management and bullying. In other words, when is it okay to tell an employee that he/she needs to pull up her socks? How often can they be told that their work is not up to scratch? This distinction is not always easy to make.
“As a workplace mediator, it never fails to surprise me that many businesses are not prepared to deal with an outbreak of conflict between two or more employees”
We had a case recently where the employee was clearly not coping with his role. The manager however was not giving him any kind of constructive feedback but simply criticised and belittled him in front of other staff. The irony was that the employee admitted he knew he was making a lot of mistakes and needed to improve his performance. He said however that he the constant barrage of negative feedback was making him so anxious that he couldn’t improve his performance hence it was this cycle of negativity from both sides that had to be addressed.
When we are approached to conduct a mediation the definitive issue that decides the success of a mediation is whether there is a likelihood that a working relationship can be restored for the organisation while simultaneously achieving a satisfactory resolution for the two employees.
When bullying or harassment is alleged we approach workplace mediation from a risk management perspective because if the background to the alleged bullying is not addressed, risk factors that contributed to the conflict will continue. It is not always simply that the “bully” is responsible for the conflict. Many organisational factors contribute to conflict such as uncertainty about roles or workloads being too heavy which results in increased stress on employees and managers.
When an organisation approaches us to conduct a mediation, we meet with a representative of the organisation, usually the HR manager to get a briefing and explain the mediation process. It’s important to ascertain what the organisation hopes to achieve from the mediation so we can determine whether mediation is appropriate.
We then meet with each party separately to gain their perspective. This is called a pre-mediation session. Here the mediator needs to gain the trust of both parties and inform them about the mediation process, including confidentiality and the limits of confidentiality.
“Resolving disputes early in the workplace is the key to preventing disruptions such as poor performance”
The joint mediation is then held with the parties to discuss the issues and hopefully to reach agreements. There is no set formula for how a mediation should end and what is needed may be different depending on the circumstances. What happens afterwards may include: an agreement outlining how the participants will interact in the future; and/or consideration of training and development issues or supervision and coaching needs.
Resolving disputes early in the workplace is the key to preventing disruptions such as poor performance, not to mention the potential for legal action or reputational damage to any organisation publicly accused of not adequately dealing with bullying and providing a safe workplace.
How does workplace bullying arise?
- It can occur in a number of ways including through direct communication, email or text messaging or other social media routes
- It can be aimed at a single worker or group of workers and be carried out by one or more workers. It can occur: upward from employees to managers; sideways between employees; and downward from managers to workers.
Impact of workplace bullying
- It can be detrimental both to the victim, the accused bully and those who witness it. The effects may include: distress, anxiety, panic attacks or sleep disturbance; physical illness for example stomach issues and headaches; poor work performance; and depression and thoughts of suicide.
Saranne Segal is a director at Hawke Segal Mediation located in Sydney