Unfair Bullying Allegations
Bullying complaints can be unfair
The idea that a bullying complaint could be unfair or unjust is a difficult topic for many people.
The thought that such a serious allegation could be made – and yet be wrong – makes people uncomfortable. For this reason, anybody facing a workplace bullying complaint faces a real disadvantage. Yet, it can be overcome.
Getting informed about your potential options before deciding how to respond to workplace bullying allegations is a good first step. There are a number of ways to learn more about these issues if you are the subject of an allegation, for instance:
- Learn more about defending allegations of workplace bullying (read on)
- Get urgent, initial legal advice from an employment lawyer (learn more)
- Get representation to challenge unfair bullying claims (details below)
Getting expert advice can be crucial to understanding your rights and responsibilities. It may also assist you in exercising your options and defending your interests. Employers may dismiss executives and employees found to have engaged in workplace bullying. Conciliation outcomes from the Fair Work Commission show reinstatement is rare after dismissal:
Whether by agreement through conciliation or following a decision after a contested process, experience shows that it is relatively rare for people to be reinstated after being dismissed from the workplace.
As with any legal issue, there is no substitute for getting professional legal advice as early as possible. However, understandably, before hiring a lawyer, most people want to get better informed about the issues they face.
Why unfair allegations may arise
Workplace bullying does occur. However, complaints of bullying that are false and unfair also happen.
It is not always a case of the accuser lying about events. People can wrongly label something as “bullying”.
The context of an event or action may be misunderstood. Also, the conduct may fairly be characterised as “reasonable management action”. The Fair Work 2009 (Cth) specifically excludes “reasonable management action” from what can called workplace bullying:
When is a worker bullied at work?
- To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
Reasonable management action may involve many common, albeit controversial, acts by executives and managers:
- performance appraisals
- performance management
- changes to working arrangements
- investigating complaints
- instigating disciplinary processes
Many management actions affect the rights or interests of a worker who may feel, rightly or wrongly, they are being unfairly targeted. It is often in that context a workplace bullying complaint is made against an executive or manager.
Malicious complaints can occur. For example, it is possible for employees to try to cover poor performance by unfairly claiming a manager is a bully – mischaracterising proper scrutiny as bullying.
There is no ‘all-purpose’ response to bullying complaints
There are many different approaches a person may take when faced with a workplace bullying complaint. The reasons for this are obvious. Not all allegations are the same and individual circumstances need to be considered.
Bullying and harassment in the workplace can take different forms and the responses may differ depending on what is alleged. A 2020/21 study (Australian Workplace Barometer Fact Sheet) on bullying and harassment found the behaviours most frequently described as bullying are being sworn or yelled at while at work and being humiliated in front of others:
The varied ways a bullying allegation may arise means there is no ‘one-size-fits-all’ approach to responding.
Understand your options
When responding to a bullying complaint, there may be a number of options open. However, because the situation may be unfamiliar, involves short timeframes, and is generally highly stressful, people do not always appreciate their options or weigh them in a considered manner.
Four common options when responding to a workplace bullying complaint include:
- Obtaining advice and guidance;
- Challenging the process;
- Challenging the allegations; and,
- Initiating ‘without prejudice’ negotiations.
There are many different approaches a person may take and there is generally no one ‘right answer’ given different people will have different priorities. In some cases, there may be multiple strands to the response, with each strand having a distinct purpose but combining to operate together.
Often the work of an employment lawyer involves assisting their client to challenge allegations, raise issues about procedural fairness, and sometimes engage in ‘without prejudice’ negotiations to resolve the problem quickly.
Every case is different. So anybody seeking personalised advice about a specific situation should consult a lawyer as soon as possible, as certain options may cease to be available as time passes. Anderson Legal offers a fixed-price, no-obligation initial consultation for people facing workplace bullying claims (learn more).
Get appropriate support
People facing allegations of workplace bullying are often instructed by their employers to keep the process confidential. It can make the process feel isolating and disempowering.
Isolation and disempowerment can lead people to feel they are simply subject to the process and that the result will be what it will be. This feeling can undermine the opportunity a person has to put their best foot forward.
An experienced lawyer can help you gain a sense of support and authority.
In dealing with workplace bullying complaints, it can be surprising how often employers and managers (even with the benefit of advisers), fail to afford procedural fairness, fail to comply with their own policies and procedures, or fail to take into account relevant information.
The question is: How seriously such flaws are taken by decision-makers? The answer may depend, to some degree, on the authority of the person raising the issue. For this reason, having the support and authority of a lawyer on your side can be critical.
Dr Robert Cialdini identified ‘the principle of authority’ as one of the six key principles of influence in his book, “Influence: The Psychology of Persuasion”. It describes the tendency for people to agree or comply with people seen as having authority on a subject. Numerous studies have shown the impact of the ‘principle of authority’ on decision-makers. In the Harvard Business Review, he described the essence of the authority principle in this way:
Two thousand years ago, the Roman poet Virgil offered this simple counsel to those seeking to choose correctly: “Believe an expert.” That may or may not be good advice, but as a description of what people actually do, it can’t be beaten.
So, if you are facing a workplace bullying allegation, particularly one you feel to be false or unfair, getting a lawyer may assist in your voice being heard. However, the true value of a lawyer should run deeper.
The persuasiveness of the response is critical
While knowing the law is fundamental for a lawyer, so is their expertise as an advocate.
Advocacy is all about persuasion.
Persuasion leads thought and action. As such, in dealing with a workplace bullying complaint, persuasiveness is a critical element in any response.
Work can be one of our defining characteristics, or at least an important part of how we perceive ourselves. So if you have been wrongly accused of bullying, it is obvious that it should generally be treated as being of the utmost importance.
Experienced lawyers are able to draw on past cases where similar issues were encountered and whether particular strategies or responses were persuasive. This bank of knowledge can be drawn upon to provide expert guidance for anybody newly facing such a situation.
Anderson Legal provides legal advice to executives and employees facing workplace bullying claims and investigations. Contact this firm for a confidential, fixed-price, and no-obligation initial consultation.