Australia: Lessons from the healthcare industry on workplace bullying and harassment risks

Recent news stories coming out of the medical and healthcare industry have highlighted a broad range of risks that hospitals and other organisations may be exposed to as a result of bullying and harassment in the workplace, and the importance of having appropriate policies and procedures in place to prevent and address these behaviours.

Spotlight on the healthcare industry

Earlier this year, mainstream media prominently featured some observations made by Sydney vascular surgeon Dr Gabrielle McMullin, who said that complaining about sexual harassment could ruin a trainee's career. Following Dr McMullin's highly publicised comments, the Royal Australasian College of Surgeons (RACS) appointed the Expert Advisory Group (EAG) to undertake research into the prevalence of discrimination, bullying and sexual harassment in the practise of surgery in Australia and New Zealand. In doing this, the EAG and RACS recognised that discrimination, bullying and sexual harassment by surgeons is an issue for the community, including the medical profession and the health sector more widely.

The EAG recently released the initial results of its research, finding that some of the critical issues in discrimination, bullying and sexual harassment in surgical practice include:

• the silence of bystanders
• the culture of surgery
• fears of reprisal from making complaints.

Further, the EAG's research found that discriminatory, bullying and harassing behaviours continue to be "endemic" in the medical work environment.

Hospital stripped of accreditation

The EAG's conclusions are highlighted in recent news reports about Canberra Hospital which, six months after being warned about a culture of bullying and harassment that had allegedly developed within the maternity unit, has been stripped of the accreditation necessary to provide urology training.

The board of urology of the Australasian College of Surgeons withdrew the hospital's accreditation after finding that its trainees were being exposed to an environment of "discrimination, bullying and harassment".

While Canberra Hospital will be able to reapply for accreditation once the issues are addressed, this situation demonstrates the far-reaching effects that workplace bullying and harassment can have on an organisation. Not only can it result in wide-ranging legal action being taken against the organisation, including workers' compensation claims, bullying complaints being mediated by the Fair Work Commission, or prosecution under work health and safety legislation, it can also restrict the proper operation and good reputation of the organisation.

Lessons to be learned

Prevention is better than cure

The ideal is to create and maintain a positive workplace culture, free of bullying and harassment.

Having clear, straightforward policies and procedures published is the first step towards creating this culture. This helps to ensure that the workforce is aware of what is expected of them, what type of conduct is not acceptable, and what to do if problematic behaviour surfaces.

Organisations should also provide regular ongoing training for managers and other staff members alike, so that potential bullying and harassment can be readily identified and dealt with. Outlining examples of bullying and harassing behaviours, and explaining the legal definitions and identifying features of bullying and harassment, can assist where the perpetrators may not necessarily be aware of what their behaviour and actions might constitute.

When a cure is required

Organisations should have a rigorous and responsive internal complaints process in place, so that employees and other workers are able to make complaints without fear of retribution and can be satisfied that all genuine complaints will be properly and fully investigated. Indeed, one of the EAG's key findings was that in the medical environments it investigated, the current internal complaints processes were not adequate.

Where complaints about bullying and harassment are made, they should be taken seriously and investigated immediately in accordance with the organisation's policies or procedures. A person independent of the allegations should undertake the investigation. If no-one within the organisation is suitably equipped and perceived as independent, the investigation should be outsourced.

Employers in all industries, healthcare or otherwise, have a duty of care towards their employees. Organisations without proper policies and procedures to address discrimination, bullying and harassment might significantly expose themselves to a broad range of risks, including:

• claims about discrimination or sexual harassment being made to the Australian Human Rights Commission or equivalent state body
• workers compensation claims arising out of a psychological or other injury sustained
• applications to the Fair Work Commission for an order to stop workplace bullying;
• claims of unfair dismissal for poorly handled investigations resulting in the termination of employment
• claims of adverse action (eg for a prohibited reason, or if retaliatory action is taken against a complainant)
• civil claims arising out of allegations of negligence
• prosecution under work health and safety legislation
• loss of accreditation.

These risks can be minimised by seeking advice and assistance as early as possible to ensure your organisation is sufficiently equipped to combat discriminatory, bullying and harassing behaviour in the workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.