Identifying workplace bullying as a result of COVID-19: duties for employers

With the increase in employees now working from home full time, employers need to be aware of new and additional pressures on individuals that can be significant risk factors for workplace bullying.

What can drive workplace bullying during the COVID-19 pandemic?

As bullying is often the result of multiple drivers, the uncertainty and constant change as a result of the pandemic has led to an increased risk for drivers of bullying to result in or be perceived as bullying.

For example, role ambiguity can occur in areas where organisations have had to quickly adapt and change priorities as a result of the pandemic. These changes may lead to a lack of clear processes being implemented and employees being unclear as to how their work fits in the new work environment.

A change in work levels can also impact employees’ expectations and feelings of security in the workplace. Both an increase and decrease in work levels can leave employees feeling targeted. For example, employees working from home may work longer hours as a result of losing their daily commute to the workplace. This can lead to deadlines becoming more urgent and expectations that these deadlines will be met.

Working from home can also heighten the capacity for employees to feel isolated and excluded. This can occur both intentionally and unintentionally, for example, team members may not be invited to certain meetings over Skype and Zoom or not included in certain ‘group’ instant messages. Although these occurrences may be unintentional, they can lead to employees feeling marginalised and excluded.

Employees working from home are also likely to have fewer resources available to them and may lack certain resources needed to complete their work to the same efficiency as in the workplace. Timelines that were reasonable pre-pandemic may now be unreasonable as a result of various factors such as slower internet speeds, challenges accessing documents or document management systems and the ability to contact decision-makers.

Working from home can also result in a blurring of workplace boundaries and lack of instruction and supervision around appropriate behaviour. Technological platforms such as Skype and Zoom often lack the same formality as in-person communication and can lead to employees being subject to potential cyberbullying.

Fair Work Commission’s response?

The Fair Work Commission has suggested that it will take any bullying behaviour while working from home seriously in its recent decision Bailey v PCL Finance Pty Ltd; Illawarra Home Loans Pty Ltd T/A Illawarra Home Loans [2020] FWC 3771 on 3 August 2020.

In this case, the Fair Work Commission stood by its decision to stand over rather than quash a worker’s stop-bullying application after hearing he perceived being excluded from his workplace and otherwise bullied while working remotely during COVID-19.

The worker first applied for a stop-bullying order in February claiming that he was being bullied by a co-worker. In March he told the Commission that the bullying behaviour had stopped but successfully requested that his case be stood over for a period of time in case the bullying resumed.

The worker’s stand over was extended to May and the worker told the Commission that he believed the bullying may continue or recur based on the way he was treated while working remotely.

Examples the worker provided included: management not responding to his emails which ‘excluded and isolated’ him from his workplace; being restricted from making decisions relating to his staff; and receiving a ‘nasty’ email from his employer for taking work stationery home to use for work purposes.

The Commissioner allowed the matter to be repeatedly stood over as there was a risk of the bullying conduct continuing because the worker and his co-worker had not been working in the same office due to the pandemic.

The fact that the worker’s normal place of employment had changed did not automatically lead to the Bullying Application being quashed.

Takeaways for employers

It is essential that employers consider strategies to address the potential for workplace bullying in the remote workforce. This can include:

• respecting pre-COVID flexible work arrangements where appropriate. For example: ensuring that employees who may have had flexible work arrangements, such as a day off to look after their children, maintain this arrangement while working from home;
• making arrangements, where necessary, to reduce stress and ensure employees feel well equipped to work from home and perform their duties;
• establishing clear boundaries and expectations so that employees are able to retain a balance between work and personal time while working from home; and
• monitoring the potential for exclusion to happen digitally rather than in the physical workplace – overt bullying may now be covert.