Management policies, instructions and guidance play a key role in emphasising the importance of appropriate behaviours.
Reflecting the APS Values and Code of Conduct in an agency’s management framework and corporate documents helps to demonstrate that an agency takes them seriously.
An organisation’s effectiveness depends on the strength of its performance management system. The system needs to both reinforce and reward delivery of outcomes (the ‘what’) and expected values and behaviour (the ‘how’). As well as measuring business outcomes, many agencies use performance agreements and assessment to improve the quality of leadership and people management skills.
The following performance assessment extract from an Australian Customs and Border Protection Service performance agreement is a good example of expected behaviour against leadership, teams and integrity responsibilities.
|Leadership/Teams and integrity||Mid-cycle C,S,R*||End-cycle C,S,R*|
* C = Consistently; S = Sometimes; R = Rarely
While performance management arrangements may differ between agencies, common elements that relate to workplace environments (and issues of respect and harassment) should ensure that:
- expectations of performance and behaviour are clear and agreed
- the criteria for assessment are well understood and consistently applied
- feedback is given regularly
- staff are well equipped and trained to give and receive feedback.
Sometimes employees perceive feedback that is critical as harassment. This is less likely to happen if the feedback is regular, fair and delivered courteously, as part of an open and objective performance management system.
Dealing with underperformance is easier if managers take a preventative approach, by giving staff clear goals and direction and focusing on people’s performance and development. To do this, managers need highly developed people management skills, including the ability to deliver timely and effective feedback.
Performance counselling or bullying?
Hill v. Minister for Local Government, Territories and Roads (2004)19 was a case about a middle manager engaged to work in a hospital on Christmas Island. Under his contract, he was eligible for an increment on performance grounds after three months.
At a performance management meeting with the General Manager, she asked him to come back the next day with a strategy to improve in an area she was concerned about. When they met again, she persistently yelled at him when discussing strategies to improve his performance. He expressed his frustration by saying that he and other staff were sick of her harassment and bullying. She then demanded his resignation.
The applicant did not resign, but did not return to work. His doctor certified him unfit to work because of stress related illness. However, he was later terminated for poor performance. The Australian Industrial Relations Commission found there was no valid reason for termination and ordered his reinstatement.
This case illustrates how legitimate management action (performance counselling) can become bullying if handled in an unreasonable way.
Managing the service delivery environment
Agencies have a responsibility to take all reasonably practicable steps to protect the health and safety of employees. This includes preventing harassment, verbal abuse or physical threat to employees who work in direct service delivery to the public.
An effective prevention programme involves implementing appropriate safeguards. It also means staff training on complying with procedures, reporting incidents, supporting risk control arrangements, and responding to inappropriate behaviour.
For more information see Bullying in the workplace: a guide to prevention for managers and supervisors (available on the Comcare website at www.comcare.gov.au). Further information is also available on the Australian Institute of Criminology website at www.aic.gov.au.
Managing complaints about harassment and bullying
Agencies need to ensure they have well known, accessible and confidential processes for employees concerned about workplace harassment and bullying. Concerns must be taken seriously.
The first step is usually to try and resolve issues informally through a supervisor or manager. However, agencies may also need to start formal complaint processes to examine alleged breaches of the Code of Conduct, especially when the complaint relates to acting without respect and courtesy or being harassed or bullied.
Because of the sensitivity of many harassment and bullying incidents, wherever possible proceedings should be confidential and designed to minimise conflict and stress. People also need easy access to information, advice and assistance about the options for raising concerns and the processes involved, including confidentiality, disclosure of information and record keeping obligations.
Agencies should support staff when dealing with harassment and bullying incidents, for example, by giving them access to:
- an employee assistance programme for counselling
- management advisory programmes, often offered by the employee assistance programme
- mentoring or buddy systems
- employees who are points of contact (such as diversity or harassment contact officers)
- human resource specialists.
Agencies need to deal with frivolous or vexatious claims of harassment and bullying quickly, firmly and fairly. Frivolous claims are those that are ‘obviously unsustainable’. Vexatious claims are those that are brought for ‘a collateral purpose, as a means of obtaining some advantage for which the proceedings were not designed’. However, agencies need to take great care when dismissing a claim on these grounds, undertaking at least sufficient inquiries to establish that the complaint is either frivolous or vexatious.
Managers have a responsibility to deal seriously and sensitively with complaints about harassment and bullying. Whenever possible, they should assist the parties to resolve their differences and agree on ways of working together. They should respond with care to all concerns or complaints by individuals or groups who perceive behaviour as harassment or bullying, even if it is found not to breach the Code of Conduct.
In most agencies, employees will have a range of options (both informal and formal) to report harassment or bullying, for example to:
- a manager or supervisor
- a trained contact officer
- an adviser in the human resources area of the agency
- the employee assistance programme.
Some tips about when to use informal or formal processes
- If it is a single incident
- If it appears the behaviour is unintentional
- If it appears that it can be resolved within the work area
- If the person who raised the issue agrees to an informal process
- If informal processes have failed and it is unlikely that an informal process will resolve the issue
- If the behaviour is serious or longstanding
- If there is significant disagreement about what has occurred and what should happen
Timeliness and a low key approach can be crucial factors in resolving workplace issues. Wherever possible, employees should be encouraged to use a process that resolves a concern or complaint through an informal or self-resolution process, which may involve a simple discussion through to a facilitated or mediated meeting. The outcome could be a clearer understanding of the person’s concerns, an apology, an agreement about future behaviour, or improved work practices. Keeping records of the processes and resolutions is important.
Resolving a dispute informally
An employee alleged that when he was acting in a supervisory role, his staff members showed a lack of respect and courtesy. He said that at weekly staff meetings staff often talked over him and no one listened to what he said. As well, he said the tasks he delegated to staff were not being completed and this showed a lack of respect.
The complainant told his deputy director about the team’s lack of support. The deputy director discussed the situation with the supervisor and his staff. They agreed to participate in a workplace conference with a qualified facilitator to help resolve the dispute. At the conference, staff had a chance to raise their concerns and everyone agreed to work together with the supervisor to achieve their tasks. As part of the process, the deputy director reported the incident and continued to monitor the workplace closely.
Depending on the circumstances, employees may choose to follow through with a formal complaint by, for example:
- using formal mechanisms included in the agency collective agreement
- reporting the behaviour to workplace diversity or harassment contact officers
- reporting the behaviour to the human resources area
- approaching the Australian Human Rights Commission.
Employees may also be able to seek a review of the outcome of the resolution process, for example by making a review application to their agency head or to the Merit Protection Commissioner.
An agency may decide—at any stage and without consulting an employee who makes a complaint—that a formal investigation is needed, due to the nature and seriousness of the behaviour being alleged.
Details about procedures for investigating breaches of the Code of Conduct are provided in the Australian Public Service Commission publication Handling Misconduct: A human resources practitioners guide to the reporting and handling of suspected and determined breaches of the APS Code of Conduct20.
Importance of keeping records
Proper records of every complaint and any action taken are vital, especially because any decisions might lead to further processes or misconduct action. Each record must include a summary of the complaint, the finding, and action taken.
Records may also be helpful in establishing grounds for a frivolous or vexatious case if a number of unsubstantiated cases are raised in a period of time. Alternatively, records may highlight there may be a more systemic issue with either the work area, individual(s) or a manager, if several incidents of a similar type are raised over a period of time.
Agencies should not place records on an employee’s personal file that relate to misconduct action following a breach of the Code of Conduct. Instead, create a separate misconduct or investigation file classified as ‘In Confidence’ with restricted access. Access should be allowed only on a strict ‘need to know’ basis.
The National Archives of Australia Administrative Functions Disposal Authority (February 2000) sets out minimum requirements for the retention of records in misconduct cases. Where the misconduct has been proven, if there are no new breaches of the Code within 5 years, the records should be destroyed and the cross–reference in their personal file removed. Where there has been a finding of no misconduct, records should be destroyed 18 months after the investigation is completed.
Records must be handled in line with the Information Privacy Principles under the Privacy Act 1988.21
For more information about records relating to claims, counselling and misconduct see the Administrative Functions Disposal Authority.22
Specialist contact officers, sometimes called harassment or diversity contact officers, do not resolve complaints. Instead, they provide information to employees, managers and supervisors about:
- processes and options for resolving complaints
- what is harassment or bullying behaviour
- sources of support—for example, line managers, human resources staff, employee assistance programmes.
Contact officers cannot always guarantee confidentiality, especially if there is a risk to employee health and safety. As a general rule, a contact officer should not give advice to both the complainant and the person against whom the complaint is made.
Contact officers should have specific training, support and assistance in understanding the nature of harassment and bullying, in responding to the needs of diverse employees, and in dealing with complaints in line with agency processes and the law.
- management policies and practices reflect the APS Values, Code of Conduct and agency standards and expected behaviours
- all instructions and guidance to employees—for example, chief executive instructions, people management rules—while creating latitude for decision-making, are consistent with the Values and Code
- a commitment to appropriate behaviour and the Values and Code is set out in key corporate documents—for example, the corporate plan, service/client charters and collective agreements or other workplace agreements
- appropriate behaviour and related people management skills are integrated in the performance management framework, which actively encourages employee engagement with the Values and Code
- instructions, advice and guidance aimed at all employees are easy to access, with good cross-referencing and, if available electronically, good key word search facilities.
19 Hill v. Minister for Local Government, Territories and Roads, PR946017, 26 April 2004
21 Information Privacy Principles; www.privacy.gov.au/publications/ipps.html