What is Upward Bullying? 4 Key Takeaways for Employers

Bullying is often associated with either peers or superiors targeting subordinates (downward bullying), it can also occur in the opposite direction, known as "upward bullying."

Recently, we have had several Managing Directors, CEOs, Executives, General Managers, Department Heads, Managers, Team Leaders and even Human Resources Managers emotionally break down over the actions of a subordinate. Many small business owners have broken down over the bullying behaviour of an employee.

This type of bullying takes place when a subordinate targets a person in a higher position, often through:

·       non-cooperation,

·       hostility, or

·       offensive conduct.

However, there is case law that provides some action steps for those experiencing upward bullying and Employers who identify this happening in their work environment.

The Queensland Industrial Relations Commission (QIRC), Cummings v State of Queensland (Queensland Health) [2022] QIRC 72, dealt with an instance of upward bullying. In this case, an employee challenged the disciplinary action imposed by their employer, Queensland Health, for alleged bullying behaviour toward their manager.

Cummings v State of Queensland (Queensland Health) [2022] QIRC 72

The employee, an Enrolled Nurse at Bundaberg Hospital's Specialist Outpatient Department, was subject to an investigation launched in September 2020. The investigation aimed to address allegations of inappropriate conduct, including bullying and harassment, within the department.

It found that the employee had engaged in behaviours that undermined and intimidated her manager over several years, negatively affecting the manager’s emotional and psychological well-being. Additionally, during a team facilitation day focused on workplace culture, the employee had behaved disrespectfully and aggressively toward her manager in front of colleagues.

In response, Queensland Health began disciplinary proceedings, which included issuing a formal reprimand and placing the employee on a performance improvement plan.

The employee admitted to being abrupt at times but denied most allegations. Dissatisfied with the employer’s decision, she lodged an appeal with the QIRC, arguing that the disciplinary measures were unwarranted and that the employer should have addressed her behaviour earlier.

The Commission’s Findings

Traditional workplace bullying requires a number of elements:

·       unreasonable

·       repeated

·       creates a workplace health and safety risk

The QIRC considered whether the employer’s handling of the disciplinary process was fair and reasonable (reasonable management action).

The employee argued that had her behaviour been addressed sooner, the disciplinary process could have been avoided. Queensland Health countered that the seriousness of the allegations justified their approach and that they had previously raised concerns about the employee's conduct.

The Commission sided with the employer, finding a consistent pattern of communication issues between the employee and her manager. The employee repeatedly blamed the manager for her own behaviour, contributing to a toxic workplace environment.

The QIRC acknowledged that employers should address workplace issues in a timely manner to prevent escalation but ultimately concluded that Queensland Health's actions were appropriate.

The Commission ruled that the disciplinary measures were fair and reasonable, dismissing the employee’s appeal. As such:

·       the issuing of a formal reprimand stood; and

·       the employee was required to comply with the performance improvement plan

Key Takeaways for Employers

This case highlights that workplace bullying can occur not just between peers or from superiors to subordinates but also in an "upward" direction. Employers must take all allegations of bullying seriously, regardless of the hierarchical context, and ensure timely interventions to maintain a healthy workplace culture.

1.       Encourage Management Training on the issues of bullying as well as upward bullying providing avenues for people managers to come forward

2.       Review the complaint or grievance procedure and policy that takes into account upward bullying, the Cummings v State of Queensland (Queensland Health) [2022] QIRC 72 case shows us that even if there is a complaint it can be handled completely separately

3.       Weaponised upward bullying triggers such as complaints during performance management or during a show cause process in regards to a manager should still be investigated and dealt with properly but not to the extent it stops the current process

4.       If you can try not to delay. The QIRC’s decision reinforces the importance of addressing inappropriate conduct early and appropriately. Delays in managing such behaviour can lead to more significant challenges for both the affected individuals and the organisation as a whole.

The Employment Law team at South Geldard Lawyers are here to help, feel free to get in touch on 07 4936 9100 or via email to Jonathan Mamaril, Director on jmamaril@southgeldard.com.au

Written By

Jonathan Mamaril

Director

Head of the Employment Law Team

South Geldard Lawyers

07 4936 9100

jmamaril@southgeldard.com.au

MCom GDLP LLB BA