False workplace bullying claims – we’re not seeing an epidemic

Despite reports of increasing false workplace bullying claims, most complaints are genuine. Omar_Gurnah

Workplace bullying is one of the most emotive issues in modern business. A recent article in the Weekend Australian Magazine deals with the issue of false claims of workplace bullying and how costly they can be.

But rather than advancing understanding of the problem, the article highlights and entrenches some of the myths and misconceptions that surround this issue. Several issues need to be clarified so that a robust and reasonable conversation on this health and safety hazard can ensue.

The first problem when highlighting that spurious reports of bullying can occur, and cost a lot of time and money to investigate, is one of focus. You can’t talk about spurious reports without contextualising them within the other kinds of reports that can occur.

It’s essentially signal detection theory. There can be spurious reports (“false alarms”); reports of bullying when it is happening (“hits”); no reports when it’s not happening (“correct rejections”); and no reports when it is happening (“misses”). We know that the last category – not reporting bullying – is common.

People don’t report for a range of reasons, including fear of payback and of losing their job. We know that the rate of people experiencing bullying who simply leave their job is around 40%. So to focus on spurious claims as though they are the main game is misleading.

Detecting bullying

Spurious claims are not very difficult to deal with, provided it is done early and appropriately. While the state of definitions of workplace bullying is often bemoaned, in Australia we have some of the most consistent, and conservative, criteria for deciding when situations constitute bullying, and when they do not.

For behaviours to be called bullying, they have to be repeated rather than just one-offs; they have to be unreasonable (judged by a hypothetical reasonable person with account of all the circumstances); and they have to cause a risk to health and safety.

We also have clear legal distinctions and policy guidelines that show the differences between bullying, harassment, discrimination and violence.

These criteria are conservative in that they do not rely on an individual’s perception of whether they are being bullied, and that more than one event has to be experienced. The “risk to health and safety” criterion guards against bullying claims from harmless situations.

In many of the spurious cases that are often reported by workplace safety regulators, it is very clear that the claims do not meet one or more of these criteria. A large part of the problem in spurious reports is that people do not seem to be applying the criteria effectively, or consistently – either because they’re not aware that they should, or their allegations are escalated too quickly. Our system has checks and balances, which when properly applied, can reduce the pain associated with spurious reports while allowing appropriate responses when necessary.

Assessing injury

A further problem is the grave misperceptions that abound regarding psychological injury, and how one achieves compensation for such injury. Compensation for psychological injuries is very difficult to achieve.

It is not simply a case of saying “I’m stressed”. One must be diagnosed with a mental disorder, and, at least in New South Wales, be judged by psychiatrists to have suffered 15% total, permanent full-body impairment.

This is a bit of an abstract concept when you’ve not seen what that looks like. Let’s paint a picture: 15% total body permanent impairment is likely to mean that you can’t ever work again. You may have lost all of your social networks due to the strains and complications of dealing with the disorder(s) you may have. You are likely to be on several medications, all of which have side effects, for which you take secondary medications. Financially, you may be ruined through legal fees and medical bills, and your anxiety may be so great that you may not be able to go outside the house that you no longer own. It’s a bleak outlook – but we have to stop thinking that suddenly after people claim to be “stressed” at work they get showered with money.

The relative contribution of the multiple factors which contribute to psychological injury is always debated. Richard Guilliatt’s article is quick to highlight the other issues that targets of bullying have experienced. One example was the case of Pasquale De Petro who received $325,000 after bullying and violence while working as a cleaner in the aviation industry. In the six years prior to his claim, his son had attempted suicide, his first wife had died, and his new partner had later been diagnosed with breast cancer.

All of these may have contributed to his injury. But let’s not forget that compensation is not awarded through the court of public opinion: multiple medical examiners (including psychiatrists) would have weighed in on the relative contribution of all of these issues to the injury in question. Similar judgements would have been made on the contributing factors to Brodie Panlock’s suicide. These are robust systems, not perfect, but informed by qualified professionals who have access to all the available facts.

Too much ‘mediation’?

Another point made by the article is the observation that an industry has grown around the problem of workplace bullying. This observation was attributed to a mediator, who claimed that consultants were making a “motza” out of it. Ahem. Mediators are usually consultants. They are often the first consultants called into workplace bullying issues. The practice of mediation in bullying allegations is very controversial, and is held to be strongly contraindicated by almost all experts and researchers in the field.

The problem, in simple terms, is that merely encouraging people to shake hands, apologise and go back to working together simply doesn’t cut it, particularly when there is a significant power differential between the parties. It’s often the first and only intervention used, with escalation of the situation being the result. Much better outcomes can be achieved, and total costs minimised, when organisations use compentent consultants and investigators who understand organisational dynamics and take a balanced, pragmatic approach. Transformative mediation might later be used to help the parties work together again, after the truth of the situation has been assessed.

The notion that we need a tribunal for workplace bullying claims is a good one. We need a place for people to go and report bullying without fear. I’d predict that with such a mechanism, and the clear implementation of criteria, reports would increase, at least in the short term (as was the case with so-called “repetitive strain injury”), but false reports would be easily weeded out so that appropriate and necessary actions can be taken.