by: Richard Guilliatt
From: The Australian, November 26, 2011 12:00AM
In a federal government office where she worked as a receptionist, 18 floors above Adelaide’s city centre, Charmaine Pickett was barely on speaking terms with her colleagues. Over seven years she had made bullying and harassment claims against seven fellow public servants, complaining their behaviour had left her stressed, humiliated and depressed.
Her supervisors, in turn, labelled her argumentative, defiant and unhelpful. Angry meetings were held, investigators called in, emails exchanged, all to no avail. The office became so toxic that Pickett, then 37, would spend hours at her desk scribbling detailed notes of her hostile encounters with co-workers.
A ringing telephone sparked the final confrontation. Pickett’s female manager demanded to know why she hadn’t answered it, prompting Pickett to file an official hazard and injury report alleging that she felt intimidated and unsafe. The manager would later testify that the opposite was true: she and her co-workers were frightened to talk to her lest their conversation was “noted down in the exercise book she was constantly writing in” and used against them. Central to Pickett’s claim was a disability resulting from a childhood illness that had left her with a pronounced limp, recurring fatigue and muscle aches. Instead of accommodating her needs, she said, her managers had singled her out by physically intimidating her and screaming orders “like a dog in an attacking manner”.
The case snowballed into one of the most costly and gruelling battles over workplace bullying allegations ever waged in Australia. Retrenched in 2008, Pickett sued the Commonwealth for discrimination in the Federal Magistrates Court, a case that turned into a three-year marathon. The most remarkable thing about it, however, was the 60,000-word judgment handed down by a Federal magistrate earlier this year. Not only did the judgment reject every one of Pickett’s harassment and discrimination claims, it concluded that she “substantially created” the toxic atmosphere in her office. “In many ways [Pickett] is an admirable person,” the magistrate said. But he concluded that she had made exaggerated or unfounded allegations against co-workers, deliberately escalated conflict at work and used the complaints system as “an instrument of intimidation”. None of her colleagues had given evidence in support of her, the magistrate noted, and he agreed with the findings of an independent investigator who wrote that Pickett’s behaviour had traumatised those who tried to manage her, and at times constituted bullying.
As Pickett herself admits, it is a damning judgment. And yet she remains unbowed. From her home in Adelaide she insists she is the victim of managers who refused to promote her and ignored her requests for a chair and workstation suitable to her needs. Despite being unemployed and in debt after exhausting a $50,000 inheritance to pursue her case, she is convinced she will ultimately be vindicated. “I can see what is written in the decision,” she says, “but I am looking at the positive side of it. It’s an opportunity to appeal, rather than walk away.”
Charmaine Pickett’s decade-long battle with the public service may not be a typical workplace dispute but some of its characteristics would be familiar to the growing legion of psychologists, occupational health experts, lawyers, unionists, mediators and bureaucrats who toil in the highly charged arena of “workplace bullying”. That two-word phrase has become ubiquitous in recent years thanks to public-awareness campaigns and a number of highly publicised lawsuits and suicides. Yet the typical workplace bullying incident of popular imagination – the young apprentice brutalised in an initiation ritual; the office worker monstered by a corporate psychopath – is far at odds with the reality of many cases. Few of these disputes are black and white. Most are a confusing swirl of claims and counterclaims about workplace performance, unfair dismissal, discrimination, personality clashes and other grievances.
Grace Collier, a former unionist who now works as an industrial relations consultant, was recently called in to mediate a dispute between a woman who runs a food business and an aggressive male employee. The mediation itself became so heated that Collier wound it up, at which point the employee chased both women down a corridor, shouting: “I haven’t finished with you two bitches!”
“He put in a workers’ compensation claim that argued the meeting constituted workplace bullying, and the claim was successful,” recalls Collier, who believes that campaigns to raise awareness about workplace bullying have produced an avalanche of claims that are at best dubious and at worst vexatious. It’s a view shared by a surprising number of mediators, regulators and even unionists, who concede that some workers seem to have developed an entirely erroneous idea of what workplace bullying is. Collier, in fact, has come to view the phrase itself as the root of the problem.
“The phrase you always hear is: ‘You can’t threaten me with the sack – that’s bullying!’?” she says. “As a workplace consultant, if I hear the words ‘bullying’, ‘harassment’ and ‘discrimination’ being thrown around, if I see posters on the wall advising employees what to do if they are bullied, I immediately know the place is in trouble. One of the first things I do is remove as much of that language as I legally can from the workplace and from its policies, because I consider it damaging and toxic.”
That workplace bullying exists, and can have tragic consequences, is beyond dispute. The 2005 suicide of NSW ambulance officer Christine Hodder, who endured years of torment in the “boys’ club” atmosphere of her workplace, led to a government inquiry that found systemic bullying in the NSW Ambulance Service. Alex Meikle, a 16-year-old apprentice working for a NSW railway contractor, killed himself while on stress leave in 2008 after enduring “pranks” from workmates that included being set on fire twice. Then there is the case that looms large in the debate – the suicide in 2006 of Brodie Panlock, a 19-year-old Melbourne cafe worker who threw herself from the roof of a multi-storey car park after months of ridicule and abuse from fellow workers.
The Panlock tragedy came to light in late 2009 when WorkSafe Victoria prosecuted the cafe’s owner and three of his male employees, all of whom pleaded guilty to breaching workplace safety laws. One of the dead girl’s co-workers testified that the three employees, including cafe manager Nicholas Smallwood, had subjected the young woman to relentless insults and demeaning remarks about her appearance, along with physical assaults that included holding her down and pouring oil on her. At one point Panlock ate rat poison in an apparent suicide attempt, prompting Smallwood to allegedly put Ratsak in her bag at work and mockingly challenge her to “do it properly”.
The ripples from that case are still being felt: spurred by a public outcry and the lobbying of Panlock’s parents, the Victorian Government this year introduced a new law that makes workplace bullying a criminal offence punishable by 10 years’ jail. South Australia and Queensland are now considering similar legislation, at a time when workplace bullying complaints appear to be increasing dramatically. In Victoria they have more than quadrupled since 2008, while at the Australian Human Rights Commission they have nearly tripled since 2005. The Community and Public Sector Union (CPSU) now gets nearly 2000 bullying calls a year to its call centre, up 360 per cent since 2007.
A succession of high-profile lawsuits has also broadcast the issue. Last year two female air-traffic controllers launched a $1 million damages claim for bullying in the Federal Court. In June, the clothing company Pacific Brands was hit with a $9 million bullying lawsuit from former executive Sally Berkeley, who had been sacked in December. Last month, a former executive at the Australian Film, TV and Radio School launched a $1 million claim alleging bullying by her chief executive, Sandra Levy, and barely a week later a former IBM executive, Susan Spiteri, launched a $1.1 million claim alleging sexual harassment and bullying by a male colleague. Those cases are just the visible tip of a much larger phenomenon, for the vast majority of these allegations are handled behind closed doors by businesses anxious to avoid the expense of a compensation claim, court case or visit from the state regulator.
Yet workplace bullying remains poorly defined and poorly understood. More than a quarter of female public servants surveyed by the CPSU last year reported being bullied at work, but the most common incidents they cited were “being put down”, “excessive criticism” and “deliberate exclusion from normal conversation”. The Victorian Equal Opportunity and Human Rights Commission lists “unjustified criticism” and “setting tasks that are unreasonably above or below a worker’s ability” as examples of “indirect bullying”. It’s hardly surprising that many bullying claims are lodged in the midst of disputes about workload, promotion or performance, and frequently hinge on subjective notions of what is and isn’t permitted in a vigorous exchange.
Former Victorian Premier Jeff Kennett was recently embroiled in one such case in his role as chairman of beyondblue, the non-profit organisation he founded to raise public awareness of depression. In August, beyondblue’s recently appointed chief executive, Dawn O’Neil, filed a formal bullying complaint against Kennett, apparently after they disagreed about her plans for the organisation. A barrister called in to investigate found O’Neil’s claims were not substantiated and she resigned. According to beyondblue’s deputy chair, Kate Carnell, the investigation concluded that “robust discussion between people at similar levels of an organisation did not constitute bullying”.
Kennett told The Weekend Australian Magazine he would not comment on his case, but he compared the current proliferation of bullying complaints to the flood of compensation claims for repetitive strain injury after computers were introduced into workplaces in the 1980s. “I don’t have any doubt that bullying exists, just as RSI exists, and if someone has a genuine claim it should be pursued,” he said. “But my understanding is that bullying involves a consistent pattern of behaviour. It’s not just a difference of opinion.
“There are so many of these cases, not just in commercial life but within the trade union movement and the public service. It has no barriers. And every time you get a high-profile case, particularly one that is seen to be successful, it gives rise to 100 others. It can be terribly debilitating and terribly costly for an organisation. It can change the focus of an organisation for the period of time it takes to resolve. And the effect it has on the individuals involved can be absolutely traumatic.”
Unions and occupational health experts argue that the rise in bullying claims is a byproduct of the stress and conflict caused by downsizing, longer hours and the rise of individual worker contracts. But even Nadine Flood, national secretary of the CPSU, acknowledges that the union is now forced to deal with hundreds of calls from public servants who mistake petty disputes and arguments about workload for bullying. Flood says that although awareness campaigns have raised the profile of bullying, they have also led many workers to erroneously believe that launching a grievance claim will somehow make their office a happier place. “In my view, encouraging people down the legal path when there are simpler, quicker solutions doesn’t do them any favours,” she says.
Complicating these cases even further is that they frequently spiral into compensation claims for stress, putting a worker’s psychological problems and their causes under intense scrutiny. Psychiatrists tasked with assessing a stressed employee will frequently diagnose “anxiety disorder” or “adjustment disorder”, but the diagnostic criteria for such conditions have long been criticised as vague and very few doctors attempt to verify the workplace bullying allegations their patients make. Such claims often become a battle of conflicting medical opinions aimed at determining what percentage of an employee’s mental troubles are work-related.
In one recent case, a 53-year-old former aircraft cleaner, Pasquale De Petro, claimed that months of bullying by colleagues during 2006 triggered a nervous breakdown that left him permanently psychologically disabled. De Petro had endured many personal difficulties in the years before lodging his claim: he had undergone counselling after his first wife died in 1999, leaving him to look after four children alone; one of his sons had been hospitalised after becoming suicidal; and his new de facto partner had developed breast cancer and been left partially disabled in 2007. His employer disputed the claim, arguing that De Petro had withheld many of these details from several of his treating doctors. However De Petro ultimately won the case and a jury awarded him $325,000 compensation in April.
Little wonder that workplace regulators report that these cases are among the most difficult they deal with. Not only are they protracted and emotional, but most of them are ultimately dismissed. When WorkSafe Victoria reviewed the bullying complaints it handled in 2010-11, it surmised that more than two-thirds were not substantiated and fewer than one per cent were serious enough to warrant possible prosecution. “That label of bullying is being applied in many instances to things that certainly go nowhere near the occupational health and safety test for us to take action,” says Ian Forsyth, executive director of health and safety at WorkSafe.
To get a sense of what Forsyth is talking about, consider three cases randomly selected from recent court judgment lists: a computer manager at a large charity, sacked for illegally accessing and disabling the emails of fellow workers, claims he was unfairly dismissed and bullied by co-workers; a Medicare manager, fired after a 13-month performance review, says he suffered psychiatric injury from his “persecution” at the hands of women and homosexual co-workers; an employee at a Bunnings hardware store in Queensland collapses to the floor after learning she has been passed over for the job of Community Activities Organiser, then lodges a compensation claim for major depression caused by bullying and “being pressured mentally/physically”. All of these claims were rejected, albeit not before lengthy insurance investigations or court proceedings.
With so many questionable claims clogging up the system, Ian Forsyth is concerned that genuine cases may get overlooked. “The concern I have is that the legacy of Brodie Panlock is in danger of being undermined through the way certain types of behaviour are being loosely described as bullying,” he says.
Even Panlock’s suicide highlights the messy reality underlying many bullying cases. Panlock was in a sexual relationship with her chief tormenter at the cafe, Nicholas Smallwood, an important element of the story which often goes unreported. Her suicide attempt with the Ratsak occurred in the basement of Smallwood’s block of flats one night after he “kicked her out”. And she killed herself after an incident in her own flat, when she drunkenly allowed Smallwood in and had sex with him, then became distraught after he ignored her pleas to stay.
“That case is quite extreme, but that interplay between the personal and the workplace is always a feature of these cases,” says Michael Tooma, a workplace lawyer with Norton Rose and a writer on occupational health issues. “The reality is that the workplace is a highly interpersonal environment.” Tooma says the Panlock case demonstrates how devastating bullying can be, but he agrees with Grace Collier that the majority of claims appear to be about relatively trivial issues. “The reality is that many of the cases that are brought are just someone being upset because they are being performance-managed or someone criticised their work. I have investigated all sorts of cases where the complaint is no more than ‘A person didn’t say hello to me’ or ‘They didn’t speak to me before they opened the door’.”
What troubles Tooma is that bullying is now being turned into a criminal offence even though it is poorly defined. “You have to ask whether there is potential for people to get caught up in criminal proceedings because the concept is not well understood,” he says.
Last month, Jillian Ramsden became the latest worker to create headlines with a bullying-related lawsuit against her employer. In a Federal Court claim, Ramsden says she was subjected to months of abuse from a colleague in the Victorian public service, only to be summarily fired after she lodged a series of formal complaints and a worker’s compensation claim for stress. In many ways it’s the archetypal case of a workplace dispute spiralling into stress leave, an unfair dismissal claim and costly litigation, except for one notable feature: the employer Ramsden is suing is WorkSafe, the very organisation charged with stamping out workplace bullying in Victoria.
A slim, softly spoken 46-year-old with round eyes and cropped hair, Ramsden had 13 years’ experience working in the Queensland public service when she moved to Melbourne in May to take up a job in WorkSafe’s administration. She says she quickly learnt that one of her female colleagues enjoyed a legendary propensity for aggressive behaviour. Within weeks, she says, she was enduring tirades of abuse while comforting colleagues in tears.
“I got plenty of abuse, plenty of times being told ‘You’re an idiot’ and ‘You don’t know what you’re talking about’,” says Ramsden, interviewed at her lawyer’s office in Melbourne. The bullying, she says, grew to include exclusion from meetings and being denied information she needed to do her job, yet her written complaints were ignored. When other colleagues lodged complaints, Ramsden says her managers criticised her for inciting trouble. By July, her dread of going to the office had become so acute that she found herself standing on a footpath “wondering whether I could get killed by a bus or a truck so that I wouldn’t have to go to work”.
Ramsden knows many people may doubt that three months in a new job could lead to thoughts of suicide, or ask why she couldn’t just “stand up for herself”. But the daily abuse and psychological warfare, she says, brought on chronic insomnia. Her statement of claim alleges that the day after she filed her stress leave claim, WorkSafe fired her – by express mail. “I’m about to lose everything I own because I’m forced to sell property at a time when I’ll be left with a $100,000 debt,” she says, becoming visibly upset.
The case has already caused great embarrassment to WorkSafe, which declined to comment, citing pending court proceedings. Ramsden’s solicitor, Josh Bornstein of Maurice Blackburn Lawyers, has promised to subject the organisation to “a long, instructive and difficult journey”. But Maurice Blackburn was itself embarrassed recently when someone used the law firm’s “Say NO To Workplace Bullying” Facebook page to reveal that Maurice Blackburn is being sued for workplace bullying by a former partner, Fiona Brown, who claims she suffered permanent psychiatric injury after being “systematically undermined, harassed and humiliated” by a partner at the firm. The case is set for trial next year after being fought all the way to the High Court, although Maurice Blackburn says it has “no input into the running of the case”, which is being contested by its insurance company. Perhaps it’s a measure of the times that the Victorian Government’s anti-bullying watchdog is fighting bullying claims from a former employee whose law firm is being sued for bullying.
The Ramsden case is the latest in a series of high-profile bullying claims launched by Maurice Blackburn, whose other clients include Susan Spiteri, the IBM executive demanding $1.1 million, and Kirsty Fletcher, a former air-traffic controller sacked after going on stress leave. Josh Bornstein freely admits using the media to publicise such cases, which he says have left him with a “visceral” sense of outrage. “I unashamedly will publicise terrible cases of bullying because I’ve had a gutful of seeing people who are chopped liver,” he says.
But Bornstein also agrees that Jillian Ramsden’s case may reflect a growing problem: workplaces are now flooded with so many bullying claims that employers – even an employer like WorkSafe itself – often feel paralysed about how to deal with them. “Bullying is subjective, there are no clear definitions, and I think that infects the response of employers,” says Bornstein. “Anecdotally, I’m told that WorkSafe doesn’t even try to investigate the majority of these types of cases. They’re jaundiced by them: they can be difficult to determine; they’re often vigorously contested.” WorkSafe’s Ian Forsyth rejected this charge, saying the organisation actively encourages employees to raise any concerns they have.
Bornstein argues that what’s needed is a tribunal similar to the Fair Work Tribunal that would adjudicate bullying claims at an early stage rather than letting them fester and spiral out of control. It could be a costly enterprise, he concedes, but nowhere near the $6 billion to $36 billion the Productivity Commission estimates is the annual toll on business of productivity losses caused by bullying. Michael Tooma supports the idea but says it would be unworkable unless governments are prepared to formulate a “precise and narrow” definition of workplace bullying that excludes the many dubious cases.
For her part, Grace Collier suggests we need to dump that ubiquitous phrase entirely. Bullying, she says, has become a “toxic trigger-word” in the workplace wars and a rich source of business for any number of mediators, lawyers and others. “There’s a whole range of consultants out there making a motza from organisations where people are accused of bullying,” says Collier. These days, she advises her clients to talk about “acceptable behaviour” and avoid the language of grievance claims entirely.
Charmaine Pickett, meanwhile, is already planning the next move in her decade-long fight with the public service, which may already have cost the Federal Government millions of dollars. During her time as a public servant, Pickett’s managers hired two physiotherapists, two occupational physicians, an ergonomist and an occupational health and safety consultant to assess her needs. They conducted innumerable internal inquiries and paid two independent investigators to assess her bullying and related complaints. They referred her to counsellors, doctors and psychiatrists, and allowed her up to three months’ sick leave at various times. They fought a protracted three-year court battle that required a team of government solicitors and a barrister.
The Federal Government is now trying to recoup its legal costs from Pickett – a quixotic quest, given that she currently lives on a disability pension. Pickett has been unable to find a lawyer to launch an appeal. But she may have a solution – she’s thinking of doing a law degree. “I’m prepared to go as far as the International Court of Justice if it’s necessary, to get the right decision,” she says. “I’m not going to let it go.”
Charmaine Pickett’s real name has been changed for legal reasons
