Could a Bullying Complaint End Up in Mediation?


Could a Bullying Complaint End Up in Mediation?

I was recently asked whether a bullying complaint could be managed by a workplace mediation. Early in my mediation career, I would have said “No” with no more thought given to the question. But now, having more than ten years of experience across Human Resources (HR) as well as mediation, I have changed my opinion. The term ‘bullying’ is often thrown around incorrectly.

Bullying at work, as defined by the Fair Work Commission (FWC), occurs when:

“A person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work AND the behaviour creates a risk to health and safety. Bullying does not include reasonable management action carried out in a reasonable manner.”

What should you do if…? 

What should you do if an employee comes to you with a complaint of being bullied by a colleague?

Firstly, you must take the complaint seriously. If an employee is being bullied at work, their physical and/or mental safety may be under threat. Failure on your part to take the complaint seriously could result in a claim being made against you as the owner for not following through on your duty of care. Not only will that be very ‘uncomfortable’ for you, but people in this situation find themselves sleeping poorly and seeking support from friends and family as well as medical support. Also, if this claim is made public, the damage to your business’ branding can be irreversible.

Taking the responsible approach to this complaint, you can start by reviewing the allegations made and then decide if you are confident in investigating the claims – without bias. If not, contact your HR officer or go directly to a workplace investigator who specialises in this area to address this matter quickly.

After you, the HR officer or the investigator, have met with all involved, one recommendation could be to offer the opportunity for the employees to meet in mediation to discuss the allegations. The first step of mediation is to identify if the matter being raised is suitable for this process.

For a mediation to go ahead under these circumstances, the workplace mediator needs to feel confident that the participants: 

  • Can correctly define bullying;
  • Would feel safe being in the same room as each other, with the mediator present (the mediator confirms this by asking each person);
  • Have been offered the opportunity to bring a non-speaking support person to the mediation;
  • Would like to attend voluntarily to address the issues of concern;
  • Understand they, the participants, have the responsibility in a mediation to agree on future ways of working together;
  • Know the purpose of mediation is to attend in good faith; and
  • Understand that what is said in the mediation is confidential between the participants and the mediator.

If the mediator is confident these aspects exist, then a mediation can go ahead.

As with every mediation, ground rules are set at the beginning and I always preface workplace mediations with, “As a mediator, I will keep the information shared in this mediation confidential unless I have a concern about the safety of a person or property, or I am directed to disclose information by a court of law.” To date, thankfully, I have never had to break my confidentiality.

I have conducted a mediation between a team member and a supervisor which commenced after a bullying complaint had been lodged with the FWC. The outcome of the mediation was a successful agreement between the two, and more importantly, the mediation opened the channel of communication between them again which enabled each to hear and understand what was going on from each other’s perspective. The complaint was lodged because the employee felt he had nowhere else to go.

Does your workplace have a process in place for employees if they feel they have nowhere else to go except the FWC?

As the owner of a small business, it’s important you have a good understanding of what to do in these serious situations. In the case of a workplace bullying complaint, that may be to bring in an experienced person in this field – and that’s okay.

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