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BULLYING, HARASSMENT AND DISCRIMINATION

One element of the APS Code of Conduct is the requirement that APS employees, when acting in the course of APS employment, must treat everyone with respect and courtesy and without harassment.²⁰ This requirement is closely linked to valuing and encouraging diversity in the workplace, which needs to be based on respect for differences between employees. It operates in tandem with protections for employees under federal discrimination legislation, and relevant State legislation, where federal discrimination legislation does not cover the field.

‘Bullying, harassment or discrimination’ were grouped and identified as an issue by a significant minority of employees in the State of the Service Report 2002—03. The 2004 employee survey separated discrimination²¹ from bullying and harassment,²² to allow a further analysis of these two related, but potentially distinct, issues.

The 2004 survey found that employees were more likely to report that they had experienced bullying and harassment than discrimination. The employee survey found that six per cent of employees reported that they had experienced discrimination during the last 12 months²³ and that 15% of employees considered that they had experienced bullying or harassment. In total, 18% of employees indicated that they had either experienced discrimination or bullying or harassment, a similar result to 2003.

While these results continue to be unsatisfactory, they also continue to be lower than the results for other jurisdictions. In South Australia, 26% of public servants who responded to a 2003 survey by the SA Office for the Commissioner of Public Employment said that they had personally experienced bullying and harassment in the workplace in the previous 12 months.²⁴ Differences in the questions asked in the two surveys and variations in methodology mean that any comparison between these figures should be treated with considerable caution, but the results suggest that concern about APS employee behaviour needs to be tempered.

The likelihood of an employee reporting that they had experienced discrimination in the APS was related to:

• disability status (12% of employees with a disability believed they had been discriminated against, compared to 5% of other employees)
• NESB1 status (11% of NESB1 employees believed they had been discriminated against, compared to 5% of other employees).

Indigenous employees were not significantly more or less likely to state that they had been discriminated against, but were more likely than other employees to be unsure about whether they had experienced discrimination.

The factors relating to a belief that an employee had suffered bullying or harassment were slightly different.

Employees with a disability were more likely to believe they had experienced bullying and harassment than other employees (24% compared to 15%), but:

• employees outside the ACT were slightly more likely to believe they had experienced bullying or harassment (17% compared to 13% for employees in the ACT)
• there were no statistically significant differences on the basis of Indigenous or NESB1 status.²⁵

The 2004 results are not directly comparable with 2003 results as this year employees were asked about discrimination, and bullying and harassment separately. Unlike the 2003 results, however, the 2004 results did not show a statistically significant difference between men and women in the likelihood of responding that they had experienced discrimination, bullying or harassment. There were also no statistically significant differences between employees of different ages.

Classification continued to be relevant to the likelihood of reporting both discrimination and bullying or harassment in 2004, but unlike 2003 there was only a statistically significant difference between SES and non-SES employees, with rates of discrimination and bullying or harassment reported by APS and EL employees not being significantly different (see Figure 8.15).

Figure 8.15: Proportion of employees reporting discrimination and bullying or harassment, by classification

Source: Employee survey

For the first time, the 2004 survey asked employees to identify who was responsible for the discrimination, bullying or harassment. Respondents could choose more than one option, so responses total more than 100%.

For 68% of respondents reporting discrimination, the person responsible for the discrimination was someone more senior (other than their supervisor) and for 42% it was their supervisor. Thirty per cent of relevant respondents reported that a colleague was the person responsible for discrimination. These three groups were also most likely to be perceived as responsible for bullying and harassment, but in such cases there were much smaller differences between the proportions of employees selecting each option. One explanation for this difference could be that perceived discrimination issues relate more to rules and policies that are made at a higher level than the immediate work area, while bullying and harassment relates more to behavioural issues at the workplace level. Clients and other people outside the agency were identified by only a small minority of employees for both bullying or harassment, or discrimination (see Figure 8.16).

Most employees reported only one source of discrimination, bullying or harassment. However, employees reporting discrimination were more likely to identify more than one source.

Figure 8.16: Person(s) responsible for discrimination and bullying or harassment

Source: Employee survey

Of the employees who reported experiencing discrimination, the highest proportions reported that the ground for the behaviour was age (33%) and sex (32%) (see Figure 8.17). There was a sizeable gap between the proportion of relevant employees selecting age and sex and the next most common grounds which were grouped within six percentage points of each other, that is, political opinion, union/non-union status, race, ethnicity and disability. Only relatively small numbers of employees identified religion or sexual preference as a ground for discrimination.

Most of the employees who believed they had experienced discrimination (71%) identified only one type of discrimination.

Figure 8.17: Proportion of employees reporting discrimination on different grounds

Source: Employee survey

For bullying or harassment, ‘perceived personality differences’ was by far the most common ground at 53% of relevant employees (see Figure 8.18 for the eleven most common grounds). The next most common grounds were ‘work performance’ (20%) and ‘employment status’ (16%). The significant minority of employees indicating bullying or harassment was based on ‘work performance’ highlights the fine line at times between a strong emphasis on performance and providing robust feedback, and what can be perceived as bullying or harassment by either a subordinate or a manager.

The initial analysis of the data on the grounds for bullying or harassment showed a high ‘other’ response (25% of relevant employees). When this was examined in more detail the most common ‘other’ ground was general employment/work issues, raised by seven per cent of all employees reporting bullying and harassment, followed by managerial style, raised by five per cent of employees.²⁶ Other issues identified, in addition to those included in Figure 8.17, and affecting only small numbers of employees, included religion, political opinion, appearance, carer responsibilities, union or non-union status, educational qualifications or the making of a complaint or raising of a Code of Conduct or Values issue. In general, the analysis highlighted the fact that while bullying and harassment can be based on multiple grounds, these commonly centre around work and personality issues.

Bullying or harassment that occurred because a person was a member of a particular EEO group or on another discriminatory ground was relatively uncommon, even for sex and age (10% and 7% of relevant employees respectively).

Figure 8.18: Proportion of employees reporting bullying or harassment on different grounds

Source: Employee survey

Most employees (two-thirds) nominated one ground for the bullying/harassment.

The employee survey also asked employees who believed that they experienced bullying or harassment to indicate the nature of this behaviour. Employees could choose more than one response. The two most common forms of bullying or harassment (both reported by 54% of employees who believed they had experienced bullying or harassment) were:

• persistent and unjustified criticism
• humiliation through sarcasm, criticism or insults, sometimes in front of other employees or customers.

Other common responses included:

• intimidating or aggressive body language (38% of relevant employees)
• deliberately withholding information from me so that I am less able to do the job (37% of relevant employees)
• oral and/or written threats (28% of relevant employees)
• shouting and screaming (25% of relevant employees).

‘Acts of physical violence’ was nominated by only one per cent of relevant employees.

There was a high ‘other’ response for this question (21%). Employees who chose this option reported unwanted sexual behaviour and circulation of sexually explicit material; exclusion from conversations and events; offensive gossip and defamatory remarks; abusive language; differential treatment, for example in allocation of leave; and general lack of respect. Bullying or harassment routinely was seen as taking more than one form.

Support structures provided by agencies for employees who believe they have experienced discrimination, bullying or harassment can vary considerably and can include mechanisms for both informal and formal handling of complaints. There are a number of statutory processes available to employees, including:

• a review of action under s. 33 of the PS Act, including direct to the Merit Protection Commissioner in defined circumstances
• reporting a breach of the Code of Conduct to an authorised person (Division 2.2 of Part 2 of the PS Regulations)
• reporting risks to health or safety to an occupational health and safety manager
• lodging a complaint with HREOC where the alleged behaviour is based on certain grounds including sex, race, age, union membership, sexual preference or disability
• lodging a claim for compensation if an injury has been sustained.

The results of the employee survey indicated that the majority of APS employees (66%) were confident about using support structures in their agencies should they be subjected to harassment, discrimination or bullying (a similar result to 2003). Eighteen per cent reported that they would not be confident using support structures. Confidence levels varied by age, with employees under 25 most likely to be confident (84%) and employees aged 35—44 least likely to be confident (59%).

Of particular concern is that those who had raised an issue of discrimination, bullying or harassment through the support structures in their agency were less likely to be confident in those structures than those who had not (39% compared to 49%).

Thirty-nine percent of employees who believed they had experienced discrimination, bullying or harassment indicated that they had raised the issue through the support structures in their agency, close to the rate of reporting of bullying and harassment in the SA Office for the Public Commissioner’s for Employment’s survey (34%).²⁷ Women were more likely to have raised the issue than men.

The question of whether to raise an issue of discrimination, bullying or harassment through agency support structures is one for individual employees to decide. Comments by some employees indicated that the reasons for not raising such issues are variable, for example:

I did not raise the bullying through the support structures, as I did not feel confident that I would be supported in the process.

Felt my complaint would not have been addressed.

I deal with it by taking the person on myself…

I couldn't be bothered reporting them as they were minor.

There is often too much work to get through and higher priorities than the arduous and complicated process of dealing with such processes.

We have officers appointed by management we are invited to seek out and discuss issues with. I would not have felt comfortable with most of them, by this I would be concerned my confidentiality would be breached.

The Harassment Contact Officer regime we have generally involves HCOs who are very junior staff...well below EL1 level and I would never ever approach them with such concerns.

It was most common for employees to raise issues of discrimination, bullying or harassment with their supervisor or manager (61% of relevant employees), followed by a manager other than their supervisor or manager (34% of relevant employees). Harassment, equity or diversity contact officers were only used by a relatively small minority of relevant employees (20%). Other options were the agency’s HR area (17%) and the employee assistance program (15%). Ten per cent of relevant employees had raised their issue through other support structures, including unions, legal representatives, staff counsellors and colleagues.

Of the employees who experienced discrimination, bullying or harassment and raised it in their agency, 34% were satisfied with the way the issue was dealt with and 45% were dissatisfied. While still a poor result, this was a considerable improvement on the 2003 results when only 18% of relevant employees were satisfied and 70% were dissatisfied. This issue is clearly a difficult one, and other jurisdictions are also grappling with employee dissatisfaction in this area. For example, the SA Office for the Commissioner for Public Employment’s employee survey found that only 23% of SA public sector employees who had made a report about an alleged incident of bullying or harassment agreed that the process was carried out in accordance with the relevant policy on bullying and harassment.²⁸

When the results are examined by EEO group, there was little difference in the satisfaction of men and women, but:

• employees with a disability were less likely to express satisfaction than employees without a disability (8% of relevant employees with a disability compared to 38% of other relevant employees)
• employees from non-English speaking backgrounds were more likely to express satisfaction than other employees (57% compared to 30%).

There were too few Indigenous employees responding to this question to provide statistically valid results.

Some employees provided comments that explained their dissatisfaction which usually related to a perceived lack of action on the part of the agency, for example:

Nothing was done. Told that it would ‘blow over’.

I was told to ignore it or confront him, but I would have preferred someone with more authority to have a word with him/give him a warning because of the content of the messages.

HCOs are almost inaccessible. They advise they are too busy and find someone else.

No assistance given at all. Just acknowledgement that the behaviour was real and was given opportunity to change work location. No sanctions for the behaviour.

Some care is needed in interpreting the information provided by the employee survey in relation to harassment, bullying and discrimination. The results suggest that the primary concern of APS employees in this area, particularly for employees reporting harassment or bullying, relates to workplace relations and the quality of management. There is clearly still a long way to go to ensure all managers are skilled in people management, including in performance feedback and communication with employees more generally. There are some particular concerns in relation to the sensitive management of people with a disability.

Similarly, there is considerable room for improvement in handling complaints of discrimination, bullying and harassment. Apart from improving the skills of managers to help them handle such complaints informally but effectively, there is a need for alternative paths to make complaints that are widely known and are not seen as presenting risks for complainants, for example, networks or groups of trained contact officers (such as harassment contact officers, equity and diversity contact officers), advisers in the human resource area of the agency, and employee assistance programs, as well as more formal internal complaint processes.

It must also be acknowledged that some employee perceptions of discrimination, harassment or bullying may be unreasonable. The modern public service does need to take a firmer approach to performance management. It is accepted that legitimate management action, provided it is undertaken in a reasonable way, is not bullying or harassment. The fact is, nonetheless, that such a firmer approach does not ever justify bullying behaviour or discrimination.

The Commission is currently developing a guide to help agencies prevent bullying and harassment. The guide covers the nature of bullying and harassment, the responsibilities of agencies, managers and employees and the potential effect on agencies and employees, as well as good practice. An exposure draft was released in May 2004. The Commission has also jointly hosted with Comcare workshops on preventing workplace bullying and harassment, aimed at lowering the incidence of psychological injuries, which can be caused by harassment and bullying, which are emerging as a major issue for the Commonwealth workers' compensation scheme.

20 PS Act, s. 13(3).

21 For the purpose of the employee survey, discrimination was defined as any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction, social origin or other attributes that removes equality of opportunity of treatment in employment. It does not include any distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job or any distinction, exclusion or preference which is a special measure to eliminate employment related disadvantage of a particular group.

22 For the purpose of the employee survey, workplace harassment was defined as entailing offensive, belittling or threatening behaviour directed at an individual or group of APS employees. The behaviour was described as unwelcome, unsolicited, usually unreciprocated and usually (but not always) repeated. While the survey noted that there is no standard definition of workplace bullying, it stated that it is generally used to describe repeated workplace behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to an individual or group of individuals. It also stated that it can be covert or overt.

23 The employee survey allowed employees to provide an ‘other’ result. On analysing this response, the Commission found a relatively large number of employees had identified themselves as being discriminated against, but had indicated a ground that was not covered by federal or state anti-discrimination legislation, for example work performance. These responses were removed, reducing the proportion of employees reporting they had experienced discrimination from 9% to 6%.

24 Office for the Commissioner for Public Employment, Selected Findings from the OCPE Workforce Perspective Survey 2003. Results can be found at <http://www.ocpe.sa.gov.au>

25 In this context the results were not statistically significant at the 95% Confidence Interval (see Appendix 2 for more information on confidence intervals).

26 For example, employees who stated that bullying was the way their manager treated all his or her staff.

27 Office for the Commissioner for Public Employment, op cit. Caution should be exercised in comparing these results because of differences in methodologies between the two surveys.

28 Office for the Commissioner for Public Employment, op cit. Caution should be exercised in comparing these results because of differences in methodologies between the two surveys.