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Occasional Advice from ASMS

TOI MATA HAUORA

UPDATED JULY 2014

Bullying in the

The ASMS is dealing with an increasing number of complaints case scenario could include a situation where an employer is aware from members about or harassment. The complaints may of bullying of an employee, takes no steps and the employee is be from members who complain of being bullied or who have had subject to physical or mental violence which causes harm. a complaint of bullying made against them. This increase seems to Health and safety inspectors from the Ministry of Business, mirror an increase in the incidence of bullying complaints across Innovation and Employment, which is charged with monitoring the general workforce. adherence to the Health and Safety in Employment Act, will This may not reflect an actual rise in the incidence of bullying investigate incidents of “serious harm” in the nature of a but simply a heightened awareness of bullying within society in recognisable mental or physical illness and may prosecute under general. Whereas in the past an employee might have put up with the Health and Safety in Employment Act. Employers would be liable an unreasonable colleague or manager, this is now less likely. The for fines under the Health and Safety in Employment Act as well as, fact that many district health boards and other employers have potentially, claims under the Employment Relations Act. adopted codes of conduct and policies to deal with complaints The Health and Safety in Employment Act requires employers to take of bullying has also given all employees access to processes for all practicable steps to ensure their staff are safe while at work and dealing with these situations, which in turn may have led to an in particular, they must take all practicable steps to: increase in allegations and perhaps a lowering of the “threshold of discomfort” that triggers a complaint. • provide and maintain a safe working environment • provide their staff with facilities for their safety and health The 2009 research “Understanding Stress and Bullying in New while at work, and maintain these facilities Zealand ” – Bentley et al 1 selected the wider health sector as one area of research and found that “respondents from • ensure that machinery and equipment is safe across all parts of the health sector indicated that high levels of • ensure that staff aren’t exposed to hazards when in the bullying occur”. Worryingly, some respondents felt that bullying workplace or when they’re working near the workplace and was endemic, particularly in the larger organisations. under employer control

While the research shows that a bully will commonly be in a • develop procedures for dealing with emergencies. position of authority or power over the victim, that is not always One of the key words above is “hazard” and this has a wide the case and bullying may occur between individuals at any level definition and includes anything that is an actual or potential cause in the organisation, including colleagues, students, registrars, or source of harm. This would include a person putting others at patients, managers and nurses. risk of workplace stress due to bullying or harassment.

Employer policies on bullying are of varying quality and ASMS Accordingly, as part of providing a safe working environment, the members may be bemused by complaints or fear the consequences employer should: of making a complaint. This ASMS Standpoint is intended to • have a formal policy on bullying and harassment provide guidance for members who find themselves subject to bullying or subject to a complaint of bullying. • act to eliminate or reduce and harassment • act with fairness and regard to the principles of natural justice The safe workplace • act with due confidentiality and impartiality • display sensitivity and concern for human dignity Employers have statutory and common law obligations to provide • act with due speed and responsiveness a safe and secure work environment. The statutory obligations are set out in the Health and Safety in Employment Act 1992 and the • act in good faith and in accordance with its policies and common law obligations have been repeatedly affirmed in case procedures. law. Employers also have a well-recognised duty to maintain the relationship of trust and confidence with their employees which Example of bullying not appropriately dealt with by the employer will be negated by an employer’s failure to address serious and sustained acts of bullying in the workplace. A senior SMO in a team of six made derogatory comments to various Employers therefore have the responsibility to take complaints of other SMOs about the junior SMOs of the team. He also frequently sent critical emails to each and made allegations relating to their practice to workplace bullying seriously and to take steps to investigate and the service manager. Interpersonal communication was often by ridicule put an end to bullying when they become aware of it. The worst and on occasion by yelling . He was responsible for the roster and it was noticeable that the junior colleagues were burdened with a 1 Undestanding Stress and Bullying in New Zealand Workplaces; final report to OH & S Steering Committee. Standpoint Bullying in the workplace 2

disproportionate amount of unpleasant duties and unsociable work. • withholding advancement or resources the person would Eventually one of the junior SMOs complained to the Chief Medical otherwise be entitled to whether that entitlement is due to Officer who initially responded “that’s just the way he is”, referring to common practice or achievement the senior SMO. The bullying continued without a suitable employer • unfair or inequitable treatment of the person being bullied. response to the complaints, leading to the eventual breakdown of the team and the junior SMOs resigning. The employer did not show due This is not an exhaustive list but indicates common bullying regard to the complainant’s health and safety or follow due process. behaviours. However, a single or isolated incident of one of these behaviours on its own will not usually amount to bullying What is bullying? and frequently a complaint will include more than one of these behaviours. The concept of bullying has not been finally defined in New Zealand law. The technical definition given by Hadyn Olsen, a Examples of bullying leading New Zealand specialist in the field of workplace bullying and harassment is: 1. An SMO in a small predominantly nurse-led service found himself being excluded from meetings and decision-making by the service manager. “Workplace bullying is unwanted and unwarranted behaviour that a Upon asking why, he was told it was because the team did not want person finds offensive, intimidating or humiliating and is repeated or to hear his advice and found him divisive and unfriendly. The SMO significant enough as a single incident to have a detrimental effect upon a was shocked and took pains to quietly ask nurse colleagues if there person’s dignity, safety and well-being.” were any issues. The feedback was positive and he was told by several that the manager in question always operated in this way in order to Elements of this definition were reflected in a 2005 Employment divide and rule. The SMO made several requests for a meeting with the 2 Relations Authority determination which defined bullying in this manager but these were refused. Over a period of 18 months the SMO way: was denied leave, CME, secretarial assistance and generally treated differently and poorly by the manager until he was at the end of his “Bullying may be seen as something that someone repeatedly does or tether. On seeking ASMS assistance he was directed to the bullying says to gain power and dominance over another, including any action or resources to consider if this was a situation of bullying. Once he realised implied action, such as threats, intended to cause fear and distress. The he was at the mercy of a serial bully (surrounded by colleagues of a behaviour has to be repeated on more than one occasion and there must be similar mind), the SMO laid a formal complaint of bullying. The employer evidence that those involved intended or felt fear. determined that this was bullying and the manager was ‘retrained’. 2. A GP working for a non-DHB organisation was advised on numerous The range of behaviours that constitute bullying is wide and occasions that his applications for CME and other leave were includes: “inappropriate” and that it was the organisation’s policy that he • physical violence or take annual leave as directed. He was also denied leave to attend • vexatious reports and malicious rumours clinical meetings with colleagues from other parts of the region. He was challenged on numerous occasions about his practice, and on • verbal threats, yelling, screaming, offensive language or asking for assistance was told there was no avenue for this. After inappropriate comments almost two years of this, his confidence and morale were diminishing • non communication, excluding or isolating the person and he wondered how he could address his shortcomings. Happily, (including assigning meaningless tasks unrelated to the or while his manager was on leave, the acting manager asked if he was attending the next clinical get-together and for the first time he did giving him/her impossible tasks or enforced overwork) so. In discussion with these colleagues from elsewhere, he came • deliberately changing work rosters to inconvenience the to realise that he was treated completely differently and he was in individual fact being bullied. With ASMS advice he laid a complaint of bullying and, following a difficult process, the employer finally agreed that • undermining work performance by deliberating withholding the manager had been bullying him and others and needed to be information or by ‘’ ‘retrained’. The manager resigned at short notice soon after. • inappropriate or unwelcome sexual comment or attention 3. A female SMO had been employed by a DHB for 18 months without • making threats about job security issue when a new male SMO was appointed to the team. From the • forwarding emails with ill intent outset of his employment, the male SMO made sexist and derogatory comments to a number of female members of staff, including the • overt or passive aggression female SMO. Shortly after he started work, the male SMO singled • exertion of excessive power or control over an individual her out on a number of occasions, unjustifiably criticising her work in • invasion of an individual’s privacy front of colleagues. Whenever she attempted to discuss issues with the male SMO regarding his patients, he would react in a very angry • spreading of malicious rumours or untruths about others manner, shouting and berating her and accusing her of interfering • undue with his patients. This behaviour continued for a number of weeks and • r i d i c u l e culminated in an incident when she was approached by the male SMO in a corridor and physically threatened. She reported it to her service • inappropriate gestures and comments manager and subsequently made a formal complaint. The male SMO • differential treatment resigned prior to the investigation into his behaviour. •  • electronic bullying – excessive messaging, unrealistic What is NOT bullying behaviour? timeframes, out of hours harassment • unwarranted disrespect It is important that complaints of bullying are made only where • abuse of position - whether the position is official or procedural bullying has actually occurred. Therefore along with the definition of what constitutes bullying, there needs to be an understanding of 2. Evans v Gen-i-Limited unreported, D King, ERA, 29 August 2005, AA 333/O5. what does not constitute bullying. Standpoint Bullying in the workplace 3

Reasonable instructions given by an employer are not bullying. and safe for them to do so, to talk to the person about their Neither are appropriate instructions or teaching that occurs in behaviour and make them aware how they have perceived it, or the process of training. Generally one instance of ‘out of the blue’ alternatively report the behaviour to an appropriate person to unpleasant behaviour from a colleague or manager is not bullying. enable the employer to deal with it and stop the behaviour from Specific examples of behaviour that do not constitute bullying escalating. (identified for Australian legislation) are: If you are being bullied • reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline, counsel, retrench or dismiss an “The best indicator of a sociopathic serial bully is not a clinical diagnosis employee but the trail of devastation and destruction of lives and livelihoods 3 • a decision by an employer, based on reasonable grounds, not to surrounding this individual throughout their life.” award or provide a promotion, transfer, or benefit in connection Any ASMS member who believes he or she has been subjected to with an employee’s employment bullying or harassment should:

• reasonable administrative action taken in a reasonable manner • obtain a copy of the employers Bullying and Harassment Policy by an employer in connection with an employee’s employment. and consider whether the behaviour that has been exhibited constitutes bullying Examples of bullying complaints that were not bullying • confidentially contact a support person or the ASMS for further behaviour advice and assistance

1. A surgeon entered the theatre to carry out a short procedure only to • lodge a complaint about the behaviour. Note that the ASMS find the patient awake. Asking the anaesthetist why the patient was does not accept that complaints can be made anonymously still awake, the surgeon was told that the ‘bloods’ were unavailable or confidentially. We believe that this would inhibit a fair because the nurse could not remember her log in. The surgeon firmly investigation process requested that the nurse find someone who could remember the log in so they could get on with it. This resulted in a bullying complaint • have their complaint investigated fairly and independently as far from the nurse and a full investigation by the employer. ASMS as is practicable submitted that this complaint did not meet the threshold for bullying, but the employer went ahead anyway. The surgeon was cleared with • expect any bullying or harassment to stop once it has been ASMS assistance but only after a stressful series of delays. brought to the attention of human resources, management, or the 2. An anaesthetist, responsible as training supervisor for an RMO on a perpetrator training run, had grave concerns about the RMO’s abilities in theatre. • be treated with respect and not victimised or disadvantaged for He discussed these concerns with SMO colleagues from a previous surgical run who had also raised issues. As a result he was very making a complaint particular in his training but eventually marked the RMO down for • have a change of line management where the complaint is the run. The RMO in response claimed he had been bullied by the against a manager or the person who the complainant is SMO and laid a formal complaint. He claimed the alleged bullying responsible to. was the reason he failed the run. This complaint was treated seriously by the employer and was formally investigated. Fortunately the SMO The chart on the next page sets out how a complaint should proceed had carefully documented the RMO’s failings and could show the from the point of view of a complainant. failure was due to a lack of competence rather than any bullying or unfair treatment by the SMO. Although cleared, the SMO has now declined further duties as training supervisor due to his fears that at Potential outcomes for a complainant any time an allegation of bullying could be used as ‘revenge’ for a poor training report. The complainant should be advised at the earliest opportunity of the outcome of the investigation into their complaint. This should preferably be done by meeting with the complainant and a support Perceptions of bullying person. If the employer, after a thorough investigation, upholds the There is a view that if a person perceives they have been bullied, complaint of bullying they will make recommendations as to they must have been bullied. The ASMS does not subscribe to how the ‘bully’ will be dealt with. This could include any of the this view. While an important aspect of assessing a complaint of following: bullying is the perception of the individual making the complaint, it is imperative to consider the full facts which may also include • change reporting lines where this has been an aspect of the the conduct or behaviour of the complainant, before concluding complaint whether the overall conduct and behaviour amounts to bullying. • change of physical location of the ‘bully’ (this may have already A complaint of bullying is just the same as any other allegation of occurred as a health and safety measure) misconduct and is subject to the same legal rules and the principles • corrective action – such as to participate in appropriate courses of natural justice. This means the employer is obliged to provide or programmes required to address behaviour a fair and just process which includes objectively assessing what • facilitation - with a view to rebuilding the working relationship actually occurred. between the complainant and ‘bully’ • apology Dealing with bullying • disciplinary action. The ASMS expects and encourages members who witness behaviours that they believe amount to bullying, if it is appropriate 3. Tim Field: http://www.bullyonline.org/workbully/ Standpoint Bullying in the workplace 4

The employer is not obliged to inform the complainant of any action being taken against the alleged bully. However, the employer has a duty of care to ensure the safety of its employees. It ASMS MEMBER CONSIDERS would therefore be expected that any action taken by the employer THEY HAVE BEEN BULLIED would ensure that no further acts of bullying occurred by the bully towards the complainant. This may involve remedial and corrective action, or in serious cases the removal of the alleged bully from the workplace.

Read this Standpoint and the employer’s policy If the employer, after a thorough investigation, does not uphold the complaint this decision and a full explanation of the reasons for it should be provided to the complainant.

If the employer makes a finding that the behaviour complained of Does the behaviour complained about still did not constitute bullying, but was inappropriate conduct they amount to bullying? may make recommendations as to how the person should be dealt with for the inappropriate conduct. This may include any of the courses of action described above.

The ASMS would not expect any negative consequences for the complainant for making the complaint, provided a fair and proper Yes No investigation has been conducted. The only exception to this would be if the employer concluded that the claim was unsubstantiated and it was vexatious or malicious. Where there is a determination that the claim was vexatious or malicious, disciplinary action may be taken against the complainant. Does the behaviour Contact ASMS complained about If a complaint of bullying is made for advice justify some other against you form or complaint? The ASMS does not condone or accept bullying or harassment by (or against) our members.

Changed expectations with regard to treatment at work have meant that the automatic respect by other employees for Do you want to make Yes No a formal complaint senior doctors or dentists has faded, as has an acceptance of an or deal with the ‘apprenticeship model’ that allows for bad language, yelling, insult, issue less formally? overwork, and treatment as a ‘dogsbody’. It could be the case that an SMO is not behaving any differently than he/she has done for many years (and indeed has experienced No further action, him or herself). However, such behaviour may now be considered keep a record of unacceptable and result in an allegation of bullying. Recent events Formal complaints we have seen are of an SMO speaking too loudly to a Non-formal Complaint nurse and registrars being given ‘an old fashioned bollocking’ and similar.

The first step if a complaint is made against you is to contact the ASMS and we will then review the complaint to ensure it is valid.

Discuss with ASMS This means that: With advice, perhaps or management a • allegations must be in writing and should not be anonymous from ASMS, submit resolution without formal complaint to • the alleged bully must have access to all information relating to need for a formal employer the complaint complaint • where the complainant is managed or led or trained by the alleged perpetrator there should be a process where line management changes to protect both parties • there should be a threshold examination as to whether the alleged behaviour constitutes bullying • the complaint is not malicious or vexatious. Note: that in the event a complaint is made against another ASMS member, a different ASMS The second step is to have a hard look at yourself and/or your industrial officer may advise the member. behaviour to see if in fact you have been engaged in bullying behaviour. If you have been (inadvertently or otherwise), you need to recognise this. Consider whether you have acted in a way that Standpoint Bullying in the workplace 5

could be considered as bullying, taking into account the behaviours If you witness bullying behaviour and conduct identified as bullying above. If you have a colleague whose behaviour is such that he/she is at Following the complaint you must not contact the complainant; if risk of an allegation of bullying, you should consider carefully contact is inevitable, you should not discuss the complaint in any advising them of that risk, perhaps by explaining that the way. You must maintain a quiet dignity and take care not to act in expectations of other colleagues, patients or staff have changed such a way that could be seen as harassment or further bullying (or are different in New Zealand) and/or by directing them to this behaviour. You must not disclose the complaint or discuss it with Standpoint. anyone but your adviser. If you think that a colleague is indulging in bullying behaviour in the workplace you should, at the earliest opportunity, advise Potential outcomes for an alleged bully them that it is not acceptable. Addressing incidents of bullying Where the employer, following a fair process, determines that the behaviour as they occur may stop further bullying or prevent the behaviour of the member constitutes bullying, the ASMS would behaviour becoming more serious. encourage the member to carefully consider how their behaviour If the behaviour is serious and the person doing the bullying might be modified and what assistance may be required to improve is unresponsive, we encourage you to report the issue to the it. A behaviour change will be necessary to ensure that they appropriate person, either a manager or a clinical leader. minimise the risk of further complaints and/or disciplinary action which could lead to dismissal. Conclusion Once the employer has made a finding that the complaint of bullying is substantiated, they will make recommendations as to Bullying at work has been around as long as the workplace but it what action should be taken as a consequence of this finding, which IS NOT acceptable, nor should it be. It is an advance that employers could be any of the following: are now taking active steps to combat this behaviour. The risks of being bullied have changed little but the risk of being accused of • apology bullying has increased. This ASMS Standpoint is intended to make • corrective action – such as being required to attend anti-bullying members who are being bullied, have been accused of bullying, or workshop or other appropriate courses or programmes are at risk of claims of bullying being made against them, aware of • disciplinary action – penalties range from a verbal warning to their rights and how the ASMS expects the employer to deal with dismissal depending on the severity of the complaint and impact these complaints. We hope this contributes to a safer and healthier on the complainant. workplace.

Procedural matters Advice about managing workplace bullying is also available from the WorkSafe New Zealand website at http://www.business.govt. If the employer does not adhere to its own procedures for dealing nz/worksafe/tools-resources/bullying-prevention-tools. with the complaint, either from the complainants or the alleged bully’s perspective and ASMS is representing either of the parties, the ASMS would make the employer aware of this and expect appropriate action to be taken to rectify the mistake.

Appeal of decision

Where a member is dissatisfied with the outcome of the investigation, the ASMS will consider the member’s reasons for this and assess whether it is appropriate to pursue the matter further. If, after considering the reasons given by the member, ASMS considers that it is justified in pursuing the matter further, it will do so. This may result in the submission of a personal grievance.

ASSOCIATION OF SALARIED MEDICAL SPECIALISTS PO Box 10763, Wellington, New Zealand + 64 4 499 1271 [email protected] asms.org.nz

TOI MATA HAUORA