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Risk Management and Workplace Bullying

 

Hypothetical Scenario:

Mr Benjamin William Jones is the CEO of MAGIC, a large, state based organisation that provides a diverse range of services including security services, administration, storage and delivery, and training. This organisation has been established for some twenty years and provides a range of services to the public and private sector. The majority of workers are fulltime with support being provided from some part time employees, and some contractors.

MAGIC has four (4) regional centres with a Regional Manager and an appropriate number of workers. Each Regional Manager provides quarterly written reports on productivity, performance and HR issues. The CEO reports to the Board on a quarterly basis.

A recent workplace death resulted in a detailed investigation being conducted by the police and the Division of Workplace Health and Safety. Reports prepared for the Coroner have indicated that workplace bullying was a contributing factor in the death.

 The Inquest heard from the police and the Division of Workplace Health and Safety investigators, along with two witnesses who gave evidence that the deceased said words to the effect that „

 he said he was going to kill himself because he just couldn’t take it anymore’

 As a result of the Inquest, the Coroner has recommended that a number of persons from MAGIC be prosecuted in relation to criminal offences and workplace health and safety breaches.

 Mr Jones has now been called to give evidence in relation the organisation?s risk management policy and procedures as they relate to workplace bullying.

 Mr George Train, Barrister-at-Law is appearing to represent the interests of the deceased, Graham Thomas Bones.

 INTRODUCTION

 The Crown Prosecutor has opened the Crown case by indicating that they will produce witnesses and other evidence that Mr Bones was responsible for his own death and that Mr Jones and others had taken all reasonable action to prevent a workplace death from bullying.

 The Defense will argue that Mr Jones and others by their inaction and failure to prevent the death of Mr Bones were directly responsible for his death.

 Opening comments have been made by the judiciary. The legal representatives have introduced themselves and outlined their roles.

 Mr Jones has taken the stand and taken the Oath. The Crown has lead Mr Jones through his evidence in chief and Mr Train the defense barrister is now cross examining him.

 Note: For ease of reading, a Question and Response approach has been taken.

 Mr Train commences.

 Question:

“Mr Jones, can you tell this Court what is your role with MAGIC?”

Response

: “Yes, I am the CEO and I have been in that position for the last two years. I worked my way up in MAGIC.”

Question:

“Thank you Mr Jones. Now, prior to becoming the CEO, what was your role?”

Response:

“Yes, as I said before, I started on the front line working in security, and over the years, moved through various areas including storage, training and administration. About ten years ago, I was promoted to Regional Manager”.

Question:

“Good. Now can you tell the Court what you did as a Regional Manager?”

Response:

“Well, I was responsible for making sure that decisions from head office were implemented. This meant hiring and firing at a local level, generally managing the workers and making sure they complied with all our policies and procedures, and making sure our reputation was maintained”.

Question:

“Yes, that?s good. Now can you tell me about some of the specific policies that you have had dealings with as a Regional Manager?”

Response:

“Um, most of the time it was fairly straight forward hiring people and sacking some, but generally it wasn?t a problem. Any time I was in doubt, I used to contact the HR Director. Most of the time though, one of the line managers would sack someone and then tell me what they had done. I would just sign off and send the paper work through to head office”.

Question:

“Interesting. Now, did you receive any formal training in relation to procedures for hiring or firing?”

Response:

“No, not really. From time to time though, we did get some documentation from head office outlining the key points to consider. It was pretty easy to follow.”

Question:

“Okay. What can you tell me about the risk management policy and procedures?”

Response:

“Head office appointed a risk management coordinator a few years ago and people rotate through that position. Not long after I was appointed as the Regional Manager, the risk management coordinator did a State tour. He came to our Regional Office and spoke for about an hour on the policy and left copies of the documentation and told us that if we had any problems, to give him a ring.”

Question:

“Did you ever have to give him a ring?”

Response:

“No, but what happened was that the auditors came through about three months later and found that we were not complying with some areas”.

Question:

“Can you tell the Court what those areas were?”

Response:

“Yes, it seemed that we were completing too much paperwork when doing the reports, and reporting on every hazard and risk. Apparently, we were only required to report the high risks.”

Question:

“I see. Did you have some concerns with this?”

Response:

“Well, yes. When the risk management coordinator came around he told us that we had to report on every risk and hazard and this is also in the policy.”

Question:

“I see. What can you tell the court about your knowledge of the workplace bullying policy?”

Response:

“I knew there was a policy and it was on the intranet but it was a HR issue that was generally handled by the HR area.”

Question:

“I see. Can I ask you to look at this document?” (Mr Jones is handed a copy of Workplace Bullying Policy dated September 2001).

Mr Jones looks at the document.

 

Question:

“What can you tell the Court about that document?”

Response:

“Well, it is the Workplace Bullying Policy for our organisation. It is dated September 2001.”

Question:

“Can I refer you to page 7?”

Mr Jones turns to page 7.

 

Question:

“Can I ask you to read out what it says in paragraph 6.4?”

Response:

“Yes, it says Regional managers are to ensure that they apply the risk management policy in all areas of the organisation. This includes operational, finance and HR.”

Question:

“Thank you Mr Jones. Now can you tell the Court how you as the Regional Manager applied the risk management policy in relation to workplace bullying?”

Response:

“Yes, I remember the previous Regional Manager coming back from head office where she had attended a meeting of the executives. She told us that a decision had been made that workplace bullying was not a high risk and that the usual systems and processes would apply.”

Question:

“Okay. What did you think was meant by that?”

Response:

“Well, I knew we had a support system in place, you know contact officers, and we had a network of safety officers. I knew there was a policy in place at that time so I thought that if the executive had made that decision, they would accept the risk if anything went wrong.”

Question:

“Mr Jones, you are now the CEO of your organisation. Can you tell the Court what changes you have made since you were promoted?”

Response:

“Yes, I have been busy. The Board wants us to increase our production levels in all areas, and we have had to make a number of changes because of Fair Work Australia as well as trying to do something about carbon tax.”

Question:

“Yes, I see. Now, have you made any changes in relation to your risk management policies and procedures?”

Response:

“Well, not long after I was promoted, I asked the risk management coordinator for a briefing in relation to industry trends and directions regarding risk management. He recommended that we review our policy and procedures as the process for updating them had started some 6 years ago. He also recommended that we have a Risk Management Committee and that we follow ISO 3100 for all our risk management. I also spoke to our Corporate Safety Manager and he told me that we should use the work health and safety risk management framework for all safety issues including bullying”.

Question:

“So you asked for some advice about 2 years ago. Is that correct?

Response:

“Yes, just after I was promoted so that would be about 22 months ago I suppose.”

Question:

“Can you tell the Court what is the current status in relation to your risk management policy and procedure?”

Response:

“Yes, I am waiting for the risk management coordinator to present a final draft to the executive so that we can sign off and have the new policy implemented.”

Question:

“Do you know when you will get the final draft?”

Response:

“Well it was supposed to be three months ago, but then the floods hit us.”

Question:

“I see. What can you tell me about your current workplace bullying policy?”

Response:

“Yes, I had a briefing from the HR director about a month ago. The Corporate Safety Manager had prepared a draft for discussion but somehow there was a virus in the computer system and the draft has been lost. There was a backup and that has been sent around for comment.”

Question:

“I see. Can you tell the Court when your current workplace bullying policy was issued?”

Response:

“I am not sure. I haven?t seen it recently.”

Question:

“Well, Mr Jones, can you look at this document and tell the Court when it was issued?

Mr Jones looks at the document.

 

Response:

“It was issued in November 2003.”

Question:

“Can you tell the Court whose signature appears on that document?”

Mr Jones looks at document.

 

Response:

“It is my signature.”

 

 

Question:

“Can you tell the Court why you signed the policy?”

Response:

“Yes, at that time, all the Regional Managers had to relieve the then CEO when he went on holidays. We would do everything that he would do, including sign policy”.

Question:

“I see. Can you turn to page 8, and look at paragraph 9.4?”

Mr Jones turns to page 8.

 

Question:

“Mr Jones, can you read out paragraph 9.4?”

Response:

“Yes, it says – The CEO or any person acting as the CEO is to ensure that the workplace bullying policy is reviewed annually or at any time when a Court, Commission or Tribunal is such that the decision may impact on this organisation. When changes are made, the CEO or any person acting as the CEO is to ensure that these changes are communicated to all workers.”

Question:

“Thank you Mr Jones. Now, you said that you signed the policy in November 2003. Is that correct?

Response:

“Yes”.

Question:

“Can you tell the Court how many times the policy has been reviewed since 2003?”

Response:

“Well, I haven?t signed off any changes. There may have been some changes, but I wasn?t aware of them.”

Question:

“Mr Jones, can you tell the Court how the CEO gets to sign off on policies?”

Response:

“Well, there would be a draft document sent around for consultation and when that had been finished, a final draft would be discussed by the Executive. If the executive was happy, the CEO would sign off.”

Question:

“So then, what you are telling the Court is that the risk management policy and the workplace bullying policy are still in the process of being finalized. Is that correct?”

Response:

“Yes”.

Question:

“In effect, the risk management policy and the workplace bullying policies have both been in existence for some time. Is that correct?”

Response:

“Yes”

Question:

“Mr Jones, do you read every policy before you sign it?”

Response:

“If I have time. We have a good process for developing policy, and sometimes I just sign what is put in front of me, especially when I see the word policy in the heading.”

Question:

“Thank you Mr Jones. Now can you tell me how many risk management workshops have been conducted in your organisation in the last two years?”

Response:

“After the initial round of training when risk management first came into the organisation, we developed a system of online training and all workers are expected to complete a refresher every year.”

Question:

“Mr Jones, when is the last time that you completed risk management training?”

Response:

“I am not sure. I have been busy trying to run the organisation. Probably not in the last two years”.

Question:

“I see. When did you last attend a workplace bullying training session?”

Response:

“We had a quick presentation at our last Executive conference three months ago, but nothing in the last two years.”

Question:

“Mr Jones, can you tell the Court how many workplace bullying incidents have been reported in the past two years?”

Response:

“Yes, there have been three”.

Question:

“What can you tell the Court about those three incidents?”

Response:

“Yes, in the first one, one of the workers was complaining about being put into a performance management plan. There was an investigation that supported what we were doing. In the other two, one involved some issues regarding assaults so the alleged bully was sacked and that matter is still going through a Tribunal hearing. In the other case, the victim lodged a WorkCover claim which was rejected. She lodged a Review and the WorkCover decision was overturned. We are still trying to sort that out.”

Question:

“Are you aware of any other incidents that may not have been reported?”

Response:

“No. There are always some rumours. If there was anything happening, workers could always report the matters to a support person”.

Question:

“Mr Jones, in relation to this matter involving Mr Bones, when did you first become aware of the bullying?”

Response:

“I hadn?t heard anything specific. I knew that he worked in an area where there was a bit of banter and teasing, but nothing really serious. Most of the blokes that work can handle a bit of rough and tumble.”

Question:

“Have you ever visited that particular workplace and spoken about your workplace bullying policy?”

Response:

“No, I have been there but no, I haven?t spoken about the policy”.

Question:

“When you were last in that workplace, did you see any copies of the brochures that your policies talk about?”

Response:

“No”

Question:

“Did you see the names of the Contact Officers displayed anywhere?”

Response:

„No”.

Question:

“Do you know who the Contact Officers are in your organisation?”

Response:

“No, I would have to look them up.”

Question:

“Do you know where you would find their names?”

Response:

“Yes, they would be on the intranet”.

Question:

“How often is that list updated?”

Response:

“Every time there is a change”.

Question:

“Mr Jones, can you look at this list and tell the Court what it is?”

Mr Jones looks at a list. “It is the list of Contact Officers.”

 

Question:

“Mr Jones, can you tell the Court whether that is a current list?”

Response:

“As far as I know it is”.

Question:

“Mr Jones, what can you tell the Court about Mr Green, Miss Jones, and Mr White?”

Response:

“Oh, they no longer work for us”.

Question:

“So Mr Jones, it appears that your risk management policy is not current. Is that correct?”

Response:

“Yes”.

Question:

“Mr Jones, your workplace bullying is out of date. Is that correct?”

Response:

“Yes”

Question:

“Your list of contact officers is out of date. Is that correct?”

Response:

“Yes”

Question:

“Mr Jones, what can you tell the Court about changes that your organisation is making as a result of the harmonization of workplace health and safety laws?”

Response:

“Yes, we had a presentation about 12 months ago from our Safety Manager. We have been waiting for the Government to finalise the regulations”.

Question:

“Mr Jones, would you be surprised if I told you that the regulations were finalized six months ago”.

Response:

“I will have to follow that up with the Safety Manager.”

Question:

“Mr Jones, the harmonization process resulted in some significant changes about due diligence for officers. What can you tell the Court about those changes?”

Response:

“Well, the Safety Manager did cover that during the presentation, but so far, I have been busy running the business. The Board wants MAGIC to increase the productivity in all areas.”

Question:

“Mr Jones, can you tell the Court about how you keep up to date with health and safety knowledge and information?”

Response:

“Well, we have a Safety Manager and a network of safety officers. I expect the Safety Manager to let me know about anything specific”.

Question:

“I see. Can you tell the Court about the last time you left your office to do some work health and safety checks?”

Response:

“I don?t go out specifically to check on work health and safety. I have been busy in the last six months. I rely on the Safety Manager and the Regional managers to tell me about any issues”.

Question:

“I see. Can you tell the Court when it was that you last attended a work health and safety training session of any kind?”

Response:

“Sometimes I have opened some sessions, but because it has been busy, I haven?t been able to stay.”

Question:

“Mr Jones, I want you to think about you answer to this question. You earlier told my learned colleague Mr Ducklove, the Crown Prosecutor that you were committed to safety leadership and that the safety of all workers was the number one concern of yours. Is that correct?”

Response:

“Yes”.

Question:

“Mr Jones, you have given evidence that you have been busy running the business, that you only opened some health and safety sessions, that you don?t keep up to date with safety changes, that your risk management policy is not current and that your workplace bullying policy is out of date. Is that correct?”

Response:

“Yes, I suppose that is true.”

Question:

“Mr Jones, it seems that you are saying that nobody told you all the specifics about the problems with your systems and processes? Is that correct?

Response:

“Well, not completely correct. I did ask some questions along the way”.

Question:

“Mr Jones, can you tell the Court, how you demonstrate your commitment to workplace health and safety if your risk management and your workplace bullying policies are not current?

Mr Jones sits there without responding.

 

Mr Train concludes by saying “I have no further questions of this witness, Your Honour.”

 

COMMENTS

 

Whilst the Crown will try and show that the worker contributed to their own death, responses provided by witnesses and through the production of exhibits such as corporate records, could show the opposite, or at least show that the actions or inactions of a range of people created an environment that was conducive to workplace bullying.

 

In a case like this, the Crown will try and show that there are systems and processes in place. For example, the following systems and processes should be evident and supported through documentation:

 

Risk management policy and procedures

 

–  Copies of risk management plans, directives, instructions, training records

Workplace bullying policy and procedures

 

 

 

–  Copies of documentation, evidence of consultation, risk assessment

Clearly defined responsibilities for Officers

 

Clear understanding of due diligence requirements

 

Training for all workers including executives

 

Commitment to work health and safety – evidence that the CEO and other executives do site inspections – safety leadership

 

Good support networks

–  Current list of Contact officers, training, brochures, contact numbers

Regular reviews of policies and procedures that take into consideration changes to legislation, Court/Commission or Tribunal decisions, and Review findings

 

Investigation processes

 

Management and Supervisory training in relation to conflict management/resolution

 

Management reviews and audits regarding effectiveness or otherwise of various policies and procedures e.g. risk management and workplace bullying

 

The defense will try and prove that those systems and processes identified above were sub standard, out dated, or did not exist, and that these were issues that contributed to the workers death.

 

This scenario has been written in such a way to highlight the problems that can exist for organisations when inappropriate responses are provided. In a case like this, the defense would have no doubt been seeking to put other workers and managers into the witness box prior to cross examining Mr Jones.

 

The responses provided in this scenario highlight how not to respond. Self incrimination can occur when a business owner or CEO has not conducted any research into systems or processes, or cannot demonstrate a reasonable understanding of policies and procedures.

 

As the due diligence requirements under the harmonization process now indicate, officers need to make themselves familiar with the health and safety systems and processes. A lack of understanding can result in inappropriate responses being provided during a Court, Commission or Tribunal hearing.

 

It might be a reasonable ploy or strategy to demonstrate to the Court that whilst there may have been some documentation, the actual workplace culture showed a lack of commitment and understanding of work health and safety.

 

 

 

LESSONS TO BE LEARNED

 

Prepare for a day in Court

 

Practice responses

 

Create scenario based training with role plays

 

Test organisational documentation

 

Anticipate worst case scenarios and develop risk management plans

 

Address workplace bullying through risk management, fraud and corruption plans, audit plans, safety plans

 

Identify left field questions

 

Engage professionals to assist in developing appropriate responses

 

Conduct „spot? audits and checks in the workplace

 

Demonstrate evidence of consultation

 

Know how risk assessments were conducted and what was considered

 

Understanding what is due diligence and what is required

 

Do your planning

 

Bernie Althofer AFAIM 2011 ©

 

EGL I ASSESSMENTS PTY LTD

 

P: 0419 661 421

 

W: www.egliassessments.com

Thank you Bernie for your fantastic article!

About the Author

Safety Concepts is an online resource providing up to date insights and covering issues in the field of Workplace Safety.

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