The Reality about Being a Complainant in the APS - A Guide
The ordinary person would, understandably, believe that if he or she was a target of bullying, harassment, victimisation or discrimination in his or her APS agency, then his or her APS agency would want to know about it and immediately put an end to the mistreatment in order to protect the well-being and productivity of the target, and to maintain a healthy and functional workplace culture. Indeed, the APS Values, the APS Code of Conduct, and APS policies would support this view. But the sad truth is that the reality frequently does not match the APS's official public position on this issue. Countless targets have made the mistake of complaining about mistreatment with the expectation that their APS agency will protect them, only to find themselves being cruelly attacked or dismissed. Even more astounding is when the perpetrators are praised or promoted soon after.
There are four main reasons why APS agencies react in this unjust manner. Firstly, unlike the private sector, APS agencies are generally more focused on maintaining conformity and obedience rather than on productivity and innovation. This breeds a culture of resentment of difference and suspicion of questioning the status quo. One of the flow-on effects of this culture can be the formulation of the view that anyone who challenges the way they are treated in the workplace must not be a team-player and is therefore an organisational threat.
Secondly, APS agencies are determined to 'contain' complaints in order to reduce legal liability risks and reputational damage. Where perpetrators (particularly perpetrators who are more assertive and are seen as more valuable to the APS agency than the targets) deny their behaviour, it is easier and more expedient for the APS agency's 'containment' strategy to focus on blaming, discounting and controlling the target rather than addressing the perpetrator's behaviour, and the APS agency's culture and system inadequacies.
Thirdly, APS employees and APS agencies are relatively divorced from the financial consequences of engagement in misconduct, thereby reducing the incentive for engagement in accountable and ethical behaviour at the individual level and organisational level. APS perpetrators can access tax-payer funded legal representation under the Legal Services Directions 2005 in legal actions taken by targets, but targets do not have access to the same privilege (thereby creating an uneven playing field). Compensation payouts and legal fees do not come out of APS agencies' operating budgets, but rather they are covered by ComCover or Comcare (the APS insurance providers).
Fourthly, a considerable number of APS employees higher up in the APS hierarchy are, or have been, themselves, perpetrators of workplace mistreatment, which manifests into a culture of 'perpetrators protecting perpetrators'.
The upshot of all of this is that the APS Values, APS Codes of Conduct, and APS policies can be merely tokenistic and can lure naive targets into a dead-end or harmful complaints process.
On the flip side, however, APS agencies will eagerly enforce the APS Values, APS Code of Conduct, and APS policies against APS employees who are viewed as threats, are not liked by influential APS perpetrators or their APS agency, or are seen as superfluous to their APS agency's needs and therefore seek to get rid of those targeted employees. Influential APS perpetrators or APS agencies can exaggerate the seriousness of frivolous complaints, solicit/incite allegations or fabricate/embellish allegations against the targeted employee - providing limited to no real procedural fairness to that targeted employee. In the APS, it is generally easier to bully, harass, victimise or discriminate against a person out of his or her job than to face the potential legal consequences of sacking him or her for the real reasons. This is the dark side of job security in the APS.
One of the biggest mistakes targets can make is to speak out about their mistreatment before educating themselves on the range of consequences they may suffer for speaking out. The purpose of this page is to guide targets on how APS perpetrators and APS agencies can really operate in order to help targets develop a strategy to navigate through the potential complex and damaging consequences of speaking out, so as to minimise frustration and harm, and maximise chances of success.
The information contained in this page is detailed and frank. It is based on thoroughly collected targets' experiences, information provided by insiders and literature. There is deliberate repetition of information throughout this page in order to help readers absorb the most significant points. The topics that this page covers are:
There are four main reasons why APS agencies react in this unjust manner. Firstly, unlike the private sector, APS agencies are generally more focused on maintaining conformity and obedience rather than on productivity and innovation. This breeds a culture of resentment of difference and suspicion of questioning the status quo. One of the flow-on effects of this culture can be the formulation of the view that anyone who challenges the way they are treated in the workplace must not be a team-player and is therefore an organisational threat.
Secondly, APS agencies are determined to 'contain' complaints in order to reduce legal liability risks and reputational damage. Where perpetrators (particularly perpetrators who are more assertive and are seen as more valuable to the APS agency than the targets) deny their behaviour, it is easier and more expedient for the APS agency's 'containment' strategy to focus on blaming, discounting and controlling the target rather than addressing the perpetrator's behaviour, and the APS agency's culture and system inadequacies.
Thirdly, APS employees and APS agencies are relatively divorced from the financial consequences of engagement in misconduct, thereby reducing the incentive for engagement in accountable and ethical behaviour at the individual level and organisational level. APS perpetrators can access tax-payer funded legal representation under the Legal Services Directions 2005 in legal actions taken by targets, but targets do not have access to the same privilege (thereby creating an uneven playing field). Compensation payouts and legal fees do not come out of APS agencies' operating budgets, but rather they are covered by ComCover or Comcare (the APS insurance providers).
Fourthly, a considerable number of APS employees higher up in the APS hierarchy are, or have been, themselves, perpetrators of workplace mistreatment, which manifests into a culture of 'perpetrators protecting perpetrators'.
The upshot of all of this is that the APS Values, APS Codes of Conduct, and APS policies can be merely tokenistic and can lure naive targets into a dead-end or harmful complaints process.
On the flip side, however, APS agencies will eagerly enforce the APS Values, APS Code of Conduct, and APS policies against APS employees who are viewed as threats, are not liked by influential APS perpetrators or their APS agency, or are seen as superfluous to their APS agency's needs and therefore seek to get rid of those targeted employees. Influential APS perpetrators or APS agencies can exaggerate the seriousness of frivolous complaints, solicit/incite allegations or fabricate/embellish allegations against the targeted employee - providing limited to no real procedural fairness to that targeted employee. In the APS, it is generally easier to bully, harass, victimise or discriminate against a person out of his or her job than to face the potential legal consequences of sacking him or her for the real reasons. This is the dark side of job security in the APS.
One of the biggest mistakes targets can make is to speak out about their mistreatment before educating themselves on the range of consequences they may suffer for speaking out. The purpose of this page is to guide targets on how APS perpetrators and APS agencies can really operate in order to help targets develop a strategy to navigate through the potential complex and damaging consequences of speaking out, so as to minimise frustration and harm, and maximise chances of success.
The information contained in this page is detailed and frank. It is based on thoroughly collected targets' experiences, information provided by insiders and literature. There is deliberate repetition of information throughout this page in order to help readers absorb the most significant points. The topics that this page covers are:
- 1. Reasons why you were Targeted;
- 2. Types of Bullying, Harassment, Victimisation and Discrimination in the APS;
- 3. The Bystander Effect
- 4. Outrage Management Tactics
- 5. Compulsory Medical Referrals (The 'Soviet' Style of Victimisation)
- 6. Your Options (Voice, Exit or Loyalty)
- 7. Advocating Effectively (Logos, Ethos, Pathos, Kairos)
- 8. Advocacy/Legal Representation Services
- 9. Mediation (The Good, The Bad and The Ugly)
- 10. Beware Human Resources
- 11. APS Preliminary Inquiries/Investigations (Creating the Appearance of 'Official Concern')
- 12. The Truth about Internal Reviews (Two Words: 'Frivolous' and 'Vexatious')
- 13. Commonwealth External Investigation/Review Agencies (Avoid Them If You Can)
- 14. The APS Modus Operandi in Legal Action (Know What You're Up Against)
- 15. Freedom of Information Applications (Classic APS Frustration Tactics)
- 16. Writing to Members of Parliament
- 17. Contacting Academics
- 18. Contacting the Media and Other Publication Options
- 19. Threats of Defamation Law Suits (Calling their Bluff)
- 20. Staying Sane in an Insane Situation
1. Reasons why you were Targeted
There are various reasons why a perpetrator may initially target an individual. Sometimes it may be because the target refuses to be subservient to, or controlled by, the perpetrator. Other times, it may be because the target possesses qualities that the perpetrator is jealous of. On some occasions it may be because the target raised certain concerns that the perpetrators feel threatened/intimidated by (that is, 'classic' whistleblowing) and therefore views his or her own reprisal actions against the target as completely justified. A lot of the time, however, it is because the perpetrator simply gains satisfaction out of exerting dominance, or humiliating or harming others.
Employees can often find themselves being targets of workplace bullying, harassment, victimisation or discrimination more than once in their lives. There are two main reasons for this. Firstly, the APS workplace has structural power imbalances that can allow more powerful employees to get away with targeting less powerful employees - as the old saying goes, power corrupts and absolute power corrupts absolutely. You are more likely to face a structural power imbalance if you are lower in the APS hierarchy than your perpetrator (so you are of less value to your APS agency), you are a contractor and your perpetrator is a permanent APS employee (so you have job insecurity), you are newer to your APS agency than your perpetrator (so you have less support networks or knowledge), or you belong to a minority group in your APS agency because of ethnicity, age, gender, disability, religion or sexual preference.
Secondly, without realising it, targets send out cues that communicate that they are unlikely to actively resist mistreatment. Perpetrators have finely tuned radars for spotting such cues as they engage in a mental calculation of an effort/benefit ratio of targeting someone (that is, individuals who require more effort to bully, harass, victimise or discriminate against than is considered worth it to the perpetrator will no longer be seen as targets). This is particularly the case when it comes to sexual harassment. These cues, which can indicate a lack of self-confidence and a lack of assertiveness, can include:
It is important that targets realise that it is not their fault that they are bullied, harassed, victimised or discriminated against. Targets' vulnerabilities harm no one but themselves (when they are exploited by perpetrators). A perpetrator's inadequacies, however, can potentially harm anyone and their actions can never be justified.
Employees can often find themselves being targets of workplace bullying, harassment, victimisation or discrimination more than once in their lives. There are two main reasons for this. Firstly, the APS workplace has structural power imbalances that can allow more powerful employees to get away with targeting less powerful employees - as the old saying goes, power corrupts and absolute power corrupts absolutely. You are more likely to face a structural power imbalance if you are lower in the APS hierarchy than your perpetrator (so you are of less value to your APS agency), you are a contractor and your perpetrator is a permanent APS employee (so you have job insecurity), you are newer to your APS agency than your perpetrator (so you have less support networks or knowledge), or you belong to a minority group in your APS agency because of ethnicity, age, gender, disability, religion or sexual preference.
Secondly, without realising it, targets send out cues that communicate that they are unlikely to actively resist mistreatment. Perpetrators have finely tuned radars for spotting such cues as they engage in a mental calculation of an effort/benefit ratio of targeting someone (that is, individuals who require more effort to bully, harass, victimise or discriminate against than is considered worth it to the perpetrator will no longer be seen as targets). This is particularly the case when it comes to sexual harassment. These cues, which can indicate a lack of self-confidence and a lack of assertiveness, can include:
- vulnerability through words - for example, making self-effacing statements
- vulnerability through paralinguistic signals - for example, having a soft or timid tone of voice
- vulnerability through displays of emotion - for example, showing expressions of fear or hurt
- vulnerability through actions - for example, a hesitant walking pace or bad posture
- vulnerability through lack of action - for example, tolerating interruptions or invasions of personal space by the perpetrator
- vulnerability through physical attributes - for example, being physically smaller than the perpetrator
- vulnerability through personal attributes - for example, being younger than the perpetrator (which means less life and work experience).
It is important that targets realise that it is not their fault that they are bullied, harassed, victimised or discriminated against. Targets' vulnerabilities harm no one but themselves (when they are exploited by perpetrators). A perpetrator's inadequacies, however, can potentially harm anyone and their actions can never be justified.
2. Types of Bullying, Harassment, Victimisation and Discrimination in the APS
The meanings of the terms 'bullying', 'harassment', 'victimisation' and 'discrimination' and the types of behaviours that can fall into these categories are outlined below.
A. Bullying
Workplace bullying is unreasonable behaviour directed towards an employee or group of employees that creates a risk to health and safety. It is usually repeated, but one-off displays of serious unreasonable behaviour should also constitute bullying. Unreasonable behaviour means behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening. Depending on the severity of the impact, workplace bullying can be illegal under some laws (see the Laws & Policies page). Yet, the current patchwork of laws relating to workplace bullying really fails to provide a coherent system of legal rights for targets of workplace bullying.
Bullying can occur face-to-face, over the phone, via email, instant messaging or using mobile phone technologies including text messaging. Bullying can involve many different forms of unreasonable behaviour, which can be obvious (direct) or subtle (indirect).
Examples of bullying given by Safe Work Australia include:
Bullying can be intentional, where the actions are intended to humiliate, offend, intimidate or distress, whether or not the behaviour did have that effect. Bullying can also be unintentional, where actions which, although not intended to humiliate, offend, intimidate or distress, cause, and should reasonably have been expected to cause, that effect.
B. Harassment
Unlawful harassment occurs when an employee or group of employees is made to feel intimidated, insulted or humiliated because of their race, colour, national or ethnic origin, sex, disability (whether real or imputed), sexual preference, or some other characteristic specified under human rights legislation and some workplace legislation, and a reasonable person would anticipate that possible reaction in the circumstances (although personal attributes of the target can sometimes be taken into account when assessing what a reasonable person would anticipate). It can be obvious or indirect, physical or verbal, repeated or one-off. It does not matter that the harassment was not intended. Unlawful harassment can also happen if someone is working in a ‘hostile work environment'. A hostile work environment can be caused by, for example, the sexual harassment of other colleagues or offensive remarks of a sexual nature made generally in the workplace.
Anecdotal evidence indicates that sexual harassment seems to be a particular problem in certain APS agencies. This is likely due to the APS's history of not taking the issue seriously enough through policies, education programs, appropriate disciplinary measures of perpetrators of sexual harassment and organisational cultural prejudices against targets of sexual harassment. Areas of the APS with greater levels of misogyny are usually the worst places for sexual harassment.
Examples of sexual harassment given by the Australian Human Rights Commission include:
Targets of sexual harassment in the APS (who are often young women) can be blamed for the harassment they receive (which is often perpetrated by older males). In fact, it is sexual harassment cases where APS agencies can become strangely vicious towards targets. To put it crudely, variations of the old 'nut' and 'slut' defences and the 'angry bitch' defence have been used in an attempt to discredit and degrade female targets of sexual harassment. Depending on the circumstances, the use of these disgraceful defences can amount to unlawful victimisation and sex discrimination (and also disability discrimination in the case of the 'nuts' defence because this imputes a mental disability).
The APS can also place an onerous/unrealistic burden on targets to prove that the sexual harassment was unwanted (which can also amount to unlawful victimisation and sex discrimination). Due to ignorance, APS agencies may refuse to accept that the targets' work situation can make them feel that they cannot safely confront their perpetrator directly and that the targets instead choose other subtle forms of communicating that the behaviour is unwanted (for example, through body language indicating discomfort/embarrassment). An excellent article that examines this issue is 'Real Versus Imagined Gender Harassment' by Julie A Woodzicka and Marianne LaFrance, Journal of Social Issues, Vol. 57, No. 1, 2001, pp. 15-30.
Some targets of sexual harassment, who realise that the use of official complaint channels poses a high risk of victimisation and dismissal, choose other more imaginative and effective strategies to help protect themselves and other potential targets. For example, in one case where a young woman experienced sexual harassment from a senior male colleague, instead of telling anyone about her experience, she wrote the name of her harasser and how he harassed her on the wall of the workplace female toilets. This was a powerful way of exposing the harasser, who had all the while conducted his harassment in secret. Subsequently, the young woman was no longer sexually harassed.
Scholars claim that sexual harassment is more about exercising power than about sex. Sexual harassment often strikes at the heart of womens' economic self-sufficiency - disrupting their earning capacity by potentially forcing them out of the workplace. One study has found that women are nine times more likely than men to leave their jobs as a result of sexual harassment.
When women are sexually harassed, they can become very confused about the situation and even wrongly blame themselves. Sometimes they may not know they are being sexually harassed, but they do know that their perpetrators' behaviour makes them feel uncomfortable or anxious. As noted by an American court in the case of Ellison v Brady 924 F.2d 872 (9th Cir. 1991), even when faced with 'mild' harassment, a woman 'may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault'. Hostile work environments can be equally as damaging as direct sexual harassment. As noted by an American court in the case of Smith v First Union National Bank 202 F.3d 234 (4th Cir. 2000), 'a work environment consumed by remarks that intimidate, ridicule and maliciously demean the status of women can create an environment that contains unwanted sexual advances'.
If you are being sexually harassed, a good book to read to help you understand your situation is 'Sexual Harassment in the Workplace' by Mary L Boland. Whilst this book is based on American law, there are still many parallels between the American and Australian positions. You can also visit the website www.sexualharassmentinaustralia.org, set up by Associate Professor Paula McDonald of the Queensland University of Technology and Professor Sarah Charlesworth of the University of South Australia.
A. Bullying
Workplace bullying is unreasonable behaviour directed towards an employee or group of employees that creates a risk to health and safety. It is usually repeated, but one-off displays of serious unreasonable behaviour should also constitute bullying. Unreasonable behaviour means behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening. Depending on the severity of the impact, workplace bullying can be illegal under some laws (see the Laws & Policies page). Yet, the current patchwork of laws relating to workplace bullying really fails to provide a coherent system of legal rights for targets of workplace bullying.
Bullying can occur face-to-face, over the phone, via email, instant messaging or using mobile phone technologies including text messaging. Bullying can involve many different forms of unreasonable behaviour, which can be obvious (direct) or subtle (indirect).
Examples of bullying given by Safe Work Australia include:
- abusive, insulting or offensive language or comments
- unjustified criticism or complaints
- continuously and deliberately excluding someone from workplace activities
- withholding information that is vital for effective work performance
- setting unreasonable timelines or constantly changing deadlines
- setting tasks that are unreasonably below or beyond a person’s skill level
- denying access to information, supervision, consultation or resources such that it has a detriment to the worker
- spreading misinformation or malicious rumours
- changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers
- excessive scrutiny at work.
Bullying can be intentional, where the actions are intended to humiliate, offend, intimidate or distress, whether or not the behaviour did have that effect. Bullying can also be unintentional, where actions which, although not intended to humiliate, offend, intimidate or distress, cause, and should reasonably have been expected to cause, that effect.
B. Harassment
Unlawful harassment occurs when an employee or group of employees is made to feel intimidated, insulted or humiliated because of their race, colour, national or ethnic origin, sex, disability (whether real or imputed), sexual preference, or some other characteristic specified under human rights legislation and some workplace legislation, and a reasonable person would anticipate that possible reaction in the circumstances (although personal attributes of the target can sometimes be taken into account when assessing what a reasonable person would anticipate). It can be obvious or indirect, physical or verbal, repeated or one-off. It does not matter that the harassment was not intended. Unlawful harassment can also happen if someone is working in a ‘hostile work environment'. A hostile work environment can be caused by, for example, the sexual harassment of other colleagues or offensive remarks of a sexual nature made generally in the workplace.
Anecdotal evidence indicates that sexual harassment seems to be a particular problem in certain APS agencies. This is likely due to the APS's history of not taking the issue seriously enough through policies, education programs, appropriate disciplinary measures of perpetrators of sexual harassment and organisational cultural prejudices against targets of sexual harassment. Areas of the APS with greater levels of misogyny are usually the worst places for sexual harassment.
Examples of sexual harassment given by the Australian Human Rights Commission include:
- unwelcome physical touching
- staring or leering
- suggestive comments or jokes
- unwanted requests to go out on dates
- requests for sex
- emailing pornography or rude jokes
- sending sexually explicit texts
- intrusive questions about your private life or body
- displaying posters, magazines or screen savers of a sexual nature.
Targets of sexual harassment in the APS (who are often young women) can be blamed for the harassment they receive (which is often perpetrated by older males). In fact, it is sexual harassment cases where APS agencies can become strangely vicious towards targets. To put it crudely, variations of the old 'nut' and 'slut' defences and the 'angry bitch' defence have been used in an attempt to discredit and degrade female targets of sexual harassment. Depending on the circumstances, the use of these disgraceful defences can amount to unlawful victimisation and sex discrimination (and also disability discrimination in the case of the 'nuts' defence because this imputes a mental disability).
The APS can also place an onerous/unrealistic burden on targets to prove that the sexual harassment was unwanted (which can also amount to unlawful victimisation and sex discrimination). Due to ignorance, APS agencies may refuse to accept that the targets' work situation can make them feel that they cannot safely confront their perpetrator directly and that the targets instead choose other subtle forms of communicating that the behaviour is unwanted (for example, through body language indicating discomfort/embarrassment). An excellent article that examines this issue is 'Real Versus Imagined Gender Harassment' by Julie A Woodzicka and Marianne LaFrance, Journal of Social Issues, Vol. 57, No. 1, 2001, pp. 15-30.
Some targets of sexual harassment, who realise that the use of official complaint channels poses a high risk of victimisation and dismissal, choose other more imaginative and effective strategies to help protect themselves and other potential targets. For example, in one case where a young woman experienced sexual harassment from a senior male colleague, instead of telling anyone about her experience, she wrote the name of her harasser and how he harassed her on the wall of the workplace female toilets. This was a powerful way of exposing the harasser, who had all the while conducted his harassment in secret. Subsequently, the young woman was no longer sexually harassed.
Scholars claim that sexual harassment is more about exercising power than about sex. Sexual harassment often strikes at the heart of womens' economic self-sufficiency - disrupting their earning capacity by potentially forcing them out of the workplace. One study has found that women are nine times more likely than men to leave their jobs as a result of sexual harassment.
When women are sexually harassed, they can become very confused about the situation and even wrongly blame themselves. Sometimes they may not know they are being sexually harassed, but they do know that their perpetrators' behaviour makes them feel uncomfortable or anxious. As noted by an American court in the case of Ellison v Brady 924 F.2d 872 (9th Cir. 1991), even when faced with 'mild' harassment, a woman 'may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault'. Hostile work environments can be equally as damaging as direct sexual harassment. As noted by an American court in the case of Smith v First Union National Bank 202 F.3d 234 (4th Cir. 2000), 'a work environment consumed by remarks that intimidate, ridicule and maliciously demean the status of women can create an environment that contains unwanted sexual advances'.
If you are being sexually harassed, a good book to read to help you understand your situation is 'Sexual Harassment in the Workplace' by Mary L Boland. Whilst this book is based on American law, there are still many parallels between the American and Australian positions. You can also visit the website www.sexualharassmentinaustralia.org, set up by Associate Professor Paula McDonald of the Queensland University of Technology and Professor Sarah Charlesworth of the University of South Australia.
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C. Victimisation
Generally, victimisation is the causing of detriment to an employee because he or she complains, or provides witness evidence, about a potential breach of the APS Code of Conduct. Essentially, it is vindictive 'payback' for speaking out. Depending on the circumstances, victimisation can be illegal under human rights laws, workplace laws and other laws (see the Laws & Policies page). Victimisation can take the form of official reprisals and unofficial reprisals.
Official reprisals is victimisation veiled behind policies, procedures and claimed operational needs/reasonable management action in order to try to avoid the charge of victimisation. Examples include:
- dismissals
- selective redundancies
- demotions
- suspensions
- punitive transfers
- poor performance reviews
- compulsory medical referrals (see the heading 'Compulsory Medical Referrals (The 'Soviet' Style of Victimisation') below)
- loss of workplace benefits
- sham investigations of targets' complaints or wrongful investigation of targets (see the heading 'APS Preliminary Inquiries/Investigations (Creating the Appearance of Official Concern)' below)
- denial of review rights (see the heading 'The Truth about Internal Reviews (Two Words: 'Frivolous' and 'Vexatious')' below)
- reported over trivial or manufactured matters
- prevention from developing a written record of victimisation
- increased scrutiny of work
- essential work resources withdrawn
- over-worked to set up for failure or under-worked to ensure boredom/inferiority
- threats of official reprisals.
There are some general tests to help determine whether 'official' actions are actually disguised reprisal actions:
-
the double standard test - that is, where one standard is applied for ordinary employees and another (much more demanding or unfair) standard is applied to targets
- the suspect timing test - that is, where targets receive less favourable treatment following a particular event, such as the making of complaints
-
the disguised reasons test - that is, where decision-makers are not genuinely open and transparent about reasons for their decisions with targets (for example, 'operational reasons' is often used to justify many management decisions, but the phrase has become a loose synonym for almost any reason, legitimate or not, thereby rendering the phrase meaningless).
Unofficial reprisals are less likely to be justified under policies, procedures and claimed operational needs/reasonable management action. These reprisals can be obvious, or they can be ambiguous, subtle or deniable. Examples include:
- engagement in outrage management tactics (see the heading 'Outrage Management Tactics' below)
- trivialising, exaggerating or otherwise distorting the targets' complaint and then discrediting the targets by rejecting the resulting 'red herring'
- forced censorship
- legal/policy rights misrepresented or denied
- ostracism/rumour spreading (see the heading 'The Bystander Effect' below)
- public belittling/humiliation
- undermined authority
- blacklisted for other jobs
- initial behaviour complained about is allowed to continue/escalate or is replicated by other APS employees towards the targets
- pressuring the targets to seek counselling/medical treatment rather than the perpetrators;
- forced to work with perpetrators
- required to work in unsafe conditions
- property damaged
- psychological, sexual, verbal or physical intimidation/abuse
- threats of unofficial reprisals.
D. Discrimination
Unlawful discrimination occurs when an employee, or a group of employees, is treated less favourably than another employee, or group of employees, because of their race, colour, national or ethnic origin, sex, pregnancy, marital status, age, disability (real or imputed), religion, sexual preference, trade union activity, or some other characteristic specified under human rights legislation or workplace legislation.
Contexts for when workplace discrimination can occur given by the Australian Human Rights Commission include:
- recruiting and selecting staff
- terms, conditions and benefits offered as part of employment
- decisions around training opportunities
- decisions around who is considered and selected for transfer, promotion, retrenchment or dismissal.
3. The Bystander Effect
The APS is probably one of the worst contexts in which a person can be a target of workplace bullying, harassment, victimisation or discrimination. This is because of the pervasive existence of the bystander effect, which results in observers having two common reactions to seeing their colleagues being mistreated:
The main cause of the first reaction is the 'diffusion of responsibility' phenomenon, that is, the more observers there are, the less likely observers are willing to assist the target because of the expectation that someone else will help or that it is someone else's responsibility to help. The main causes of the second reaction is a fear that job security/career advancement can be jeopardised or there is risk of being victimised by being associated with, or supportive of, an employee who has fallen out of favour (and this fear is often inflated in the APS).
The more uncomfortable bystanders feel about their unfair treatment towards the targets, the more likely they will act even more adversely towards the targets to try to justify that their behaviours are necessary and righteous. Once collective targeting ensues, the targets are unfortunately viewed as the source of conflict rather than being the unjust target of it.
All of this betrayal has a profound effect on targets who often experience feelings of confusion, anguish, anger and depression. These reasonable reactions are often used by perpetrators and APS agencies against the targets to unfairly paint them as the wrongdoers, overly sensitive, lacking in resilience, unproductive or mentally unstable. Thus, targets of workplace bullying, harassment, victimisation and discrimination in the APS are frequently in a lose-lose situation.
- stand idly by and not assist the targets;
- turn on targets by avoiding and isolating them, not sharing critical information with them, spreading gossip about them (often presented as 'concern'), blaming them, denying previous supportive statements made to them, denying what they have witnessed, and aligning with perpetrators.
The main cause of the first reaction is the 'diffusion of responsibility' phenomenon, that is, the more observers there are, the less likely observers are willing to assist the target because of the expectation that someone else will help or that it is someone else's responsibility to help. The main causes of the second reaction is a fear that job security/career advancement can be jeopardised or there is risk of being victimised by being associated with, or supportive of, an employee who has fallen out of favour (and this fear is often inflated in the APS).
The more uncomfortable bystanders feel about their unfair treatment towards the targets, the more likely they will act even more adversely towards the targets to try to justify that their behaviours are necessary and righteous. Once collective targeting ensues, the targets are unfortunately viewed as the source of conflict rather than being the unjust target of it.
All of this betrayal has a profound effect on targets who often experience feelings of confusion, anguish, anger and depression. These reasonable reactions are often used by perpetrators and APS agencies against the targets to unfairly paint them as the wrongdoers, overly sensitive, lacking in resilience, unproductive or mentally unstable. Thus, targets of workplace bullying, harassment, victimisation and discrimination in the APS are frequently in a lose-lose situation.
4. Outrage Management Tactics
Whenever you confront your perpetrator or make a complaint about workplace bullying, harassment, victimisation or discrimination, there is a risk that the perpetrator and their apologists may engage in a victimisation tactic known in the literature as 'outrage management'. This is when perpetrators (and their protective employer), who behave in ways that others might perceive as unjust, use one or more of the following tactics to dampen outrage in response to their behaviour in an attempt to protect their reputation and reduce the risk of responsibility and liability:
In order to increase your chances of successfully influencing potential supporters and decision-makers of the truthfulness of your claims and the need to address your concerns, you will need to cause these outrage management tactics to backfire. The general backfire approach espoused by experts is to:
Yet, these approaches are not always straight-forward or possible. Under some of the headings below, issues that can be relevant to the outrage management backfire approach are discussed, which can help you make an informed decision about the best course of action in your circumstances.
For further reading, Professor Brian Martin of the University of Wollongong (and other co-authors) have written several articles about tactics against injustice, which are located on Professor Brian Martin's website.
- cover up and deny the action (maintaining the veil of secrecy)
- devalue the target (when the target is portrayed as inferior or spiteful, the mistreatment does not seem as bad)
- reinterpret the behaviour by lying, minimising, reframing or blaming (giving a different explanation for the mistreatment that makes it seem more acceptable)
- use official channels to give an appearance of justice (official channels are often presented as a genuine means of achieving justice when the reality is that many times there is limited substance and they can sometimes be more harmful)
- intimidate or bribe people involved (targets or witnesses are verbally or physically intimidated, or given incentives to be complicit or silent).
In order to increase your chances of successfully influencing potential supporters and decision-makers of the truthfulness of your claims and the need to address your concerns, you will need to cause these outrage management tactics to backfire. The general backfire approach espoused by experts is to:
- expose the mistreatment as widely as possible
- validate yourself, by demonstrating good performance, integrity and other positive traits, and mobilise support
- interpret the mistreatment as unjust and unfair, and explain why contrary explanations are wrong
- avoid official channels or discredit official channels that lack legitimacy (if you choose to use official channels, focus on realistic purposes, such as exposure, rather than conventional justice)
- refuse to be intimidated or bribed, and expose intimidation and bribery.
Yet, these approaches are not always straight-forward or possible. Under some of the headings below, issues that can be relevant to the outrage management backfire approach are discussed, which can help you make an informed decision about the best course of action in your circumstances.
For further reading, Professor Brian Martin of the University of Wollongong (and other co-authors) have written several articles about tactics against injustice, which are located on Professor Brian Martin's website.
5. Compulsory Medical Referrals (The 'Soviet' Style of Victimisation)
One of the most controversial provisions under the Public Service Regulations 1999 is regulation 3.2 which gives APS agencies the power to direct APS employees to: (a) undergo a medical examination by a medical practitioner of the APS agency's choice for an assessment of the employee's fitness for duty; and (b) give the APS agency head a medical report of the examination.
This power has been used by APS agencies for the pernicious purpose of referring complainants to psychiatric assessments in an attempt to undermine and discredit complainants' mental state, and to cause complainants greater distress. Depending on the circumstances, this type of abuse of regulation 3.2 of the Public Service Regulations 1999 could arguably be a form of victimisation and discrimination in breach of section 16 of the Public Service Act 1999, the APS Code of Conduct, section 15 of the Disability Discrimination Act 1992, section 340 of the Fair Work Act 2009, section 5 of the Administrative Decisions (Judicial Review) Act 1977, defamation law and may also be in breach of other laws and APS policies (see the Laws & Policies page). It is also notable that clause 6 of the Institute of Australasian Psychiatrists' Code of Ethics states that 'it is unethical for a psychiatrist chosen by an employer to examine an employee who has been forced to attend'.
There are a number of important issues to note with this form of abuse. Firstly, psychiatry is a 'soft' science - it is based on open subjective opinion rather than hard evidence, such as x-rays and tissue examination. Thus, psychiatry arguably does not hold the same status and credibility levels that other 'hard' science fields hold. Professors Thomas Szasz, Michel Foucault and David Rosenhan are often cited as leading scholars who are critical of psychiatry. Secondly, whilst 'hired guns' appear in most professions, they appear to be more prevalent and more vicious in psychiatry. Hired gun psychiatrists are rogue psychiatrists that APS agencies may try to use, knowing that they will get the 'diagnoses' that they seek (usually based on an unwritten and implied understanding between the APS agencies and the hired gun psychiatrists) in order to discredit, demote or dismiss employees who are viewed by the APS agencies as 'troublemakers'.
The process starts with employees being compulsorily referred to psychiatrists of the APS agency's choice for a medical assessment. If employees refuse to take part in an assessment, they can be unfairly accused of having 'something to hide' and they face the threat of termination of employment, discipline or financial penalty. An APS agency may direct employees to stay away from work (at the employees' own expense) until they attend the psychiatric assessment, despite the fact that there is a growing acceptance in common law of the right of an employee to perform work (see, for example, the case of Quinn v Overland (2010) FCA 799).
At the same time, the APS agency may try to compel the employees to grant the APS agency access to the whole of the employees' medical histories, not telling the employees of their right of refusal to grant access. The employees may not even be told that they are being referred to a psychiatrist and the employees simply assume that they are having a physical medical assessment until they realise what is happening when they are in the psychiatrist's office.
Then there are usually secret briefings by the APS agency to the psychiatrist (which are frequently inaccurate and sometimes wildly misleading) and employees, who are unaware of the existence or content of the briefings, have little chance to refute the APS agency's allegations. (Depending on the circumstances, this may amount to a breach of the Privacy Act 1988 - see the Privacy Law sub-page.) Furthermore, the psychiatrist's assessment report may also be provided to the APS agency in secret, without employees being aware of the 'diagnoses' (or lack thereof) in the report. Of course, such information can be accessed under the Freedom of Information Act 1982 (see the Freedom of Information Law sub-page), but APS agencies notoriously engage in blockage and delay tactics to try to prevent employees accessing their personal information, particularly assessment reports that are favourable towards employees. Where reports are, in fact, favourable towards employees, the APS agency may subsequently send the employees to different psychiatrists in an attempt to shop around for the 'diagnoses' that it seeks. The highest number of compulsory psychiatric referrals for one APS employee has reportedly been eight separate referrals. Alternatively, the APS agency may complain to the psychiatrist and demand that they redo their assessment report in a way that serves the APS agency's agenda.
The 'diagnoses' that hired gun psychiatrists invariably come up with are forms of personality disorders which can sometimes be stretched out to serious mental illnesses, such as paranoid schizophrenia. Such 'diagnoses' are usually arrived at after only one forty-minute session with employees, and are based on manipulated evidence, questionable evidence or no evidence at all. Where employees have suffered a psychological/psychiatric injury as a result of bullying, harassment, victimisation or discrimination, the hired gun psychiatrists will try to claim that the injury is a 'pre-existing' condition, rather than work-related.
Other common tactics employed by hired gun psychiatrists are:
Disturbingly, it is notable that there are some striking parallels in the intent behind APS agencies' abuse of regulation 3.2 of the Public Service Regulations 1999 and the notorious false psychiatric diagnoses and institutionalisation of dissidents through the use of punitive psychiatry in the Soviet Union.
Of course, there are a greater number of ethical psychiatrists who can see when employees have been referred to them for the sole purpose of victimisation and discrimination by APS agencies, and nobly refuse to be accomplices to APS agencies' unscrupulous and sadistic tactics. If the employees who are referred to such psychiatrists are fortunate, the psychiatrists may produce reports to this effect.
If you are subjected to, or are threatened to be subjected to, a compulsory psychiatric assessment, it is essential that you seek advice and representation from a reputable advocate or lawyer as soon as possible.
If you do end up partaking in a psychiatric assessment, recognise that it is a forensic assessment, not a therapeutic assessment. Consider taking someone you trust along with you to be a witness, as you should be entitled to a support person as per the Australian Medical Association guidelines. If the psychiatrist refuses to allow a support person to be present, you should consider requesting a different psychiatrist who complies with the Australian Medical Association guidelines.
It is best to assume that the psychiatrist is well-intentioned and to not show any hostility towards the psychiatrist, as this may solidify the psychiatrist's prejudices against you. Yet, you should also assume that the psychiatrist has already received information about you from your APS agency that is bound to be slanted towards your APS agency's agenda. Thus, you may want to take your own medical practitioner's report along with you to contradict any misinformation fed by your APS agency to the psychiatrist.
You should usually engage with the psychiatrist honestly, rather than refuse to talk. When the psychiatrist asks open-ended or ambiguous questions, try to ask him or her what exact information is being sought before answering such questions. When answering questions, try to be calm and to-the-point as much as possible - do not feel that you need to qualify or elaborate on your answers. Do not speculate or offer an opinion unless you are prepared to acknowledge that you are, in fact, speculating or offering an opinion at the time. Be reasonable at all times and, in particular, do not take the position that your APS agency must guarantee that you are never to be mistreated again because this is not possible. Instead, ask for what is possible, that is, your APS agency should ensure that it will deal with any complaint you might make in the future fairly, and in line with relevant laws, policies and procedures.
In January 2012 and in August 2012, the Australian Public Service Commission made comment on its view of the legality of the use of compulsory medical referrals at Part 2.6 of its 'Terminating APS Employment: The Legislative Framework' guide (see the PDF document below) and in response to Questions on Notice to the House of Representatives Standing Committee on Education and Employment (see the PDF document below).
In October 2012, the House of Representatives Standing Committee on Education and Employment publicly criticised the APS for its misuse of compulsory psychiatric referrals in its 'Workplace Bullying: We Just Want it to Stop' report (see the PDF document below). The Committee stated 'the fitness for duty test may support, reward and enable a culture of workplace bullying'. It also stated that it 'is concerned that there are no mandatory safeguards in the Commonwealth regulations requiring all decisions to refer a worker to a mental health assessment (or indeed any health assessment) be signed off by a second and at least somewhat independent party. It is also worrying that there is no requirement that Commonwealth Government departments have formal procedures in place setting out how decisions about health assessments must be made.'
The Committee recommended that the Commonwealth Government:
This power has been used by APS agencies for the pernicious purpose of referring complainants to psychiatric assessments in an attempt to undermine and discredit complainants' mental state, and to cause complainants greater distress. Depending on the circumstances, this type of abuse of regulation 3.2 of the Public Service Regulations 1999 could arguably be a form of victimisation and discrimination in breach of section 16 of the Public Service Act 1999, the APS Code of Conduct, section 15 of the Disability Discrimination Act 1992, section 340 of the Fair Work Act 2009, section 5 of the Administrative Decisions (Judicial Review) Act 1977, defamation law and may also be in breach of other laws and APS policies (see the Laws & Policies page). It is also notable that clause 6 of the Institute of Australasian Psychiatrists' Code of Ethics states that 'it is unethical for a psychiatrist chosen by an employer to examine an employee who has been forced to attend'.
There are a number of important issues to note with this form of abuse. Firstly, psychiatry is a 'soft' science - it is based on open subjective opinion rather than hard evidence, such as x-rays and tissue examination. Thus, psychiatry arguably does not hold the same status and credibility levels that other 'hard' science fields hold. Professors Thomas Szasz, Michel Foucault and David Rosenhan are often cited as leading scholars who are critical of psychiatry. Secondly, whilst 'hired guns' appear in most professions, they appear to be more prevalent and more vicious in psychiatry. Hired gun psychiatrists are rogue psychiatrists that APS agencies may try to use, knowing that they will get the 'diagnoses' that they seek (usually based on an unwritten and implied understanding between the APS agencies and the hired gun psychiatrists) in order to discredit, demote or dismiss employees who are viewed by the APS agencies as 'troublemakers'.
The process starts with employees being compulsorily referred to psychiatrists of the APS agency's choice for a medical assessment. If employees refuse to take part in an assessment, they can be unfairly accused of having 'something to hide' and they face the threat of termination of employment, discipline or financial penalty. An APS agency may direct employees to stay away from work (at the employees' own expense) until they attend the psychiatric assessment, despite the fact that there is a growing acceptance in common law of the right of an employee to perform work (see, for example, the case of Quinn v Overland (2010) FCA 799).
At the same time, the APS agency may try to compel the employees to grant the APS agency access to the whole of the employees' medical histories, not telling the employees of their right of refusal to grant access. The employees may not even be told that they are being referred to a psychiatrist and the employees simply assume that they are having a physical medical assessment until they realise what is happening when they are in the psychiatrist's office.
Then there are usually secret briefings by the APS agency to the psychiatrist (which are frequently inaccurate and sometimes wildly misleading) and employees, who are unaware of the existence or content of the briefings, have little chance to refute the APS agency's allegations. (Depending on the circumstances, this may amount to a breach of the Privacy Act 1988 - see the Privacy Law sub-page.) Furthermore, the psychiatrist's assessment report may also be provided to the APS agency in secret, without employees being aware of the 'diagnoses' (or lack thereof) in the report. Of course, such information can be accessed under the Freedom of Information Act 1982 (see the Freedom of Information Law sub-page), but APS agencies notoriously engage in blockage and delay tactics to try to prevent employees accessing their personal information, particularly assessment reports that are favourable towards employees. Where reports are, in fact, favourable towards employees, the APS agency may subsequently send the employees to different psychiatrists in an attempt to shop around for the 'diagnoses' that it seeks. The highest number of compulsory psychiatric referrals for one APS employee has reportedly been eight separate referrals. Alternatively, the APS agency may complain to the psychiatrist and demand that they redo their assessment report in a way that serves the APS agency's agenda.
The 'diagnoses' that hired gun psychiatrists invariably come up with are forms of personality disorders which can sometimes be stretched out to serious mental illnesses, such as paranoid schizophrenia. Such 'diagnoses' are usually arrived at after only one forty-minute session with employees, and are based on manipulated evidence, questionable evidence or no evidence at all. Where employees have suffered a psychological/psychiatric injury as a result of bullying, harassment, victimisation or discrimination, the hired gun psychiatrists will try to claim that the injury is a 'pre-existing' condition, rather than work-related.
Other common tactics employed by hired gun psychiatrists are:
- antagonistic and provocative behaviour towards employees
- creating distractions (such as making unnecessary noises) to disrupt employees' train of thought
- 'verballing' employees (such as saying to employees in a sympathetic joking manner 'couldn't you just kill those bullies for what they have done' and when the employees agree to this statement, naively believing it is just a harmless figure of speech, the hired gun psychiatrist later records in the reports that the employees expressed desires and fantasies to commit murder)
- refusing to allow support persons to be present for interviews
- encouraging 'self-diagnoses' (such as asking 'what do you think you are suffering from?')
- engaging in bizarre assessment techniques (such asking employees to make comments on pictures of different animals)
- asking intrusive and inappropriate questions (such as asking whether employees had ever been sexually abused as children)
- using a standard report already in existence on a word processor and the hired gun psychiatrist simply fills in the gaps.
Disturbingly, it is notable that there are some striking parallels in the intent behind APS agencies' abuse of regulation 3.2 of the Public Service Regulations 1999 and the notorious false psychiatric diagnoses and institutionalisation of dissidents through the use of punitive psychiatry in the Soviet Union.
Of course, there are a greater number of ethical psychiatrists who can see when employees have been referred to them for the sole purpose of victimisation and discrimination by APS agencies, and nobly refuse to be accomplices to APS agencies' unscrupulous and sadistic tactics. If the employees who are referred to such psychiatrists are fortunate, the psychiatrists may produce reports to this effect.
If you are subjected to, or are threatened to be subjected to, a compulsory psychiatric assessment, it is essential that you seek advice and representation from a reputable advocate or lawyer as soon as possible.
If you do end up partaking in a psychiatric assessment, recognise that it is a forensic assessment, not a therapeutic assessment. Consider taking someone you trust along with you to be a witness, as you should be entitled to a support person as per the Australian Medical Association guidelines. If the psychiatrist refuses to allow a support person to be present, you should consider requesting a different psychiatrist who complies with the Australian Medical Association guidelines.
It is best to assume that the psychiatrist is well-intentioned and to not show any hostility towards the psychiatrist, as this may solidify the psychiatrist's prejudices against you. Yet, you should also assume that the psychiatrist has already received information about you from your APS agency that is bound to be slanted towards your APS agency's agenda. Thus, you may want to take your own medical practitioner's report along with you to contradict any misinformation fed by your APS agency to the psychiatrist.
You should usually engage with the psychiatrist honestly, rather than refuse to talk. When the psychiatrist asks open-ended or ambiguous questions, try to ask him or her what exact information is being sought before answering such questions. When answering questions, try to be calm and to-the-point as much as possible - do not feel that you need to qualify or elaborate on your answers. Do not speculate or offer an opinion unless you are prepared to acknowledge that you are, in fact, speculating or offering an opinion at the time. Be reasonable at all times and, in particular, do not take the position that your APS agency must guarantee that you are never to be mistreated again because this is not possible. Instead, ask for what is possible, that is, your APS agency should ensure that it will deal with any complaint you might make in the future fairly, and in line with relevant laws, policies and procedures.
In January 2012 and in August 2012, the Australian Public Service Commission made comment on its view of the legality of the use of compulsory medical referrals at Part 2.6 of its 'Terminating APS Employment: The Legislative Framework' guide (see the PDF document below) and in response to Questions on Notice to the House of Representatives Standing Committee on Education and Employment (see the PDF document below).
In October 2012, the House of Representatives Standing Committee on Education and Employment publicly criticised the APS for its misuse of compulsory psychiatric referrals in its 'Workplace Bullying: We Just Want it to Stop' report (see the PDF document below). The Committee stated 'the fitness for duty test may support, reward and enable a culture of workplace bullying'. It also stated that it 'is concerned that there are no mandatory safeguards in the Commonwealth regulations requiring all decisions to refer a worker to a mental health assessment (or indeed any health assessment) be signed off by a second and at least somewhat independent party. It is also worrying that there is no requirement that Commonwealth Government departments have formal procedures in place setting out how decisions about health assessments must be made.'
The Committee recommended that the Commonwealth Government:
- review how the fit for duty test is used, and publish a report of its findings
- make any necessary amendments to the legislation or policies to ensure safeguards are in place
- require the Australian Public Service Commission to collect data about the grounds on which fit for duty review applications are made.
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6. Your Options (Voice, Exit or Loyalty)
Once you have actually identified that you are the target of workplace bullying, harassment, victimisation or discrimination, you usually have three options:
You can also do a combination of the voice and exit options, which can be quite powerful. The voice option and the exit option are discussed below.
A. The Voice Option
Most self-help books on workplace bullying and harassment recommend that targets confront their perpetrators. This is usually worthwhile advice to follow. In the workplace context, many targets choose not to directly confront their perpetrators because:
Yet, the general facts are:
However, you will still need to engage in a risk-assessment to determine whether the realities of your circumstances will allow for an open and direct confrontation to be successful, namely:
Whenever you confront your perpetrator, ensure that you keep a diary record of each instance, in case you will need this later as evidence of showing that the behaviour was unwanted.
If you decide that it is best to not directly confront your perpetrator, but you are finding it difficult to deal with the continuation of the mistreatment, you could choose to horizontally voice your concerns (that is, informally gather support from colleagues) or vertically voice your concerns (that is, speak with a superior officer or workplace bullying/harassment officer, make a formal complaint to your APS agency's internal investigation area, or take your grievance outside your APS agency).
Obtaining support at the horizontal level requires a patient effort to find out where your colleagues stand and then to mobilise those who are sympathetic, win over some of those who are neutral and to reduce the hostility of some of the opponents. When you have obtained supporters, make sure you are aware of whether they wish to either openly support you or secretly support you, and respect their choices since they also need to protect their interests. (Unfortunately, obtaining support can be difficult in the APS, as many senior APS officers and APS investigators falsely claim that the Privacy Act 1988 prevents targets from discussing their experiences with colleagues, thereby limiting targets' opportunities to obtain support and witness evidence. This naturally aids the APS agency in achieving its goal to 'contain' potential complaints.)
There are three main reasons why you would want supporters at the horizontal level:
Before choosing to exercise the vertical voice, again, you will need to engage in a risk assessment to determine whether using this option would be worthwhile. The key risk factors for reprisals from your perpetrator, your colleagues, your superiors and your APS agency for making an informal or formal complaint include:
Whatever way you choose to exercise the voice option, trust your instincts, keep yourself informed, and ensure that you advocate your position as effectively as possible (see the heading 'Advocating Effectively (Logos, Ethos, Pathos, Kairos)' below).
B. The Exit Option
If you feel that there is limited benefit, or the chances of reprisals are high, from voicing concerns about mistreatment, or you have already voiced your concerns while still working for your APS agency and you are suffering from reprisals, then exiting your APS agency should be a serious consideration. Many targets do not favour this option because it puts them at the inconvenience of having to search out another job, or leave a job that they like, when they have done nothing wrong. However, an exit can be the smartest move when it extricates you from an unhealthy and damaging environment. If your exit is a silent one (that is, you have not voiced any concerns), then your chances of positive references may be improved, as the reality is that there is often an unfortunate stigma attached to being a target of workplace bullying, harassment, victimisation and discrimination in the APS.
Of course, the downside of choosing the exit option, as opposed to choosing the voice option, is that the aggregate effect of individuals silently exiting is harmful to future targets in the long-run (in terms of the 'tyranny of small decisions'). Unlike private-sector organisations, APS agencies do not face the same discipline of the free market and therefore silent exits are usually not a strong way to alert and encourage APS agencies to assess and change their internal culture and practices. Thus, the silent exit will protect the short-run private interests of immediate targets, but not the long-run 'public good' that can come from exercising the voice option.
- voice your grievances directly with your perpetrator, your superiors, or through internal or external channels (official or unofficial)
- exit your APS agency
- remain 'loyal' to your APS agency by not saying or doing anything (of course you are not really being 'loyal' to your APS agency if you choose this option, as true 'loyalty' would involve the voice option in order to provide your APS agency with the opportunity to address its workplace shortcomings, but the unfortunate reality is that APS agencies often do not view the voice option in this way).
You can also do a combination of the voice and exit options, which can be quite powerful. The voice option and the exit option are discussed below.
A. The Voice Option
Most self-help books on workplace bullying and harassment recommend that targets confront their perpetrators. This is usually worthwhile advice to follow. In the workplace context, many targets choose not to directly confront their perpetrators because:
- they are in denial of the mistreatment they are receiving
- they believe that their perpetrators will soon get bored and leave them alone
- they imagine the worst possible consequences for being confrontational
- they do not have a confrontational nature.
Yet, the general facts are:
- very rarely will denying/ignoring the problem actually work because, more often than not, inaction or appeasement will be interpreted by perpetrators as weakness and submission, thereby encouraging perpetrators to continue/escalate their abuse
- an open and direct hostile-assertive confrontation can often be the most effective way to nip problem-behaviours in the bud (this is because open confrontation lifts the veil of secrecy and a direct hostile-assertive confrontation is often strangely respected by perpetrators)
- the longer perpetrators are allowed to mistreat their targets, the harder it becomes for perpetrators to change their habits
- the health and safety consequences of allowing abuse to occur in the long-run may well exceed initial imagined consequences for speaking up in the early stages
- there is a risk that if you bottle up your frustrations over a long period of time without saying anything, you may later 'explode' over one instance of provocation, which may mistakenly look like an overreaction to onlookers who do not realise that your 'explosion' is actually a proportionate reaction to a long-run campaign of mistreatment by your perpetrators
- in any later APS preliminary inquiries/investigations or legal action, targets may be unfairly penalised or blamed for not having the confidence to directly confront their perpetrators about their behaviour being unwanted (in the APS, particularly when it comes to sexual harassment, there can be a strangely demanding expectation of targets to explain that they did not want to be mistreated - the fact that the workplace is the most challenging context for targets to voice disapproval because of the concern of reprisals and being blamed can often be overlooked/dismissed by APS agencies).
However, you will still need to engage in a risk-assessment to determine whether the realities of your circumstances will allow for an open and direct confrontation to be successful, namely:
- your capabilities (for example, if you are unable to unflinchingly present yourself as strong and assertive in your confrontation, then your attempt at confrontation may worsen the situation)
- the number of supporters you have (for example, if you have been unable to gather witnesses or supporters who are willing to openly stick by you, confrontation could result in colleagues not standing by you or turning against you, thereby strengthening the perpetrator's position)
- the number of supporters your perpetrator has (for example, if your perpetrator is higher up in the APS hierarchy, then it is likely that your perpetrator will have support from career-minded employees underneath him or her and the protection of superior APS officers)
- the number of perpetrators (for example, if there are several perpetrators who are targeting you, it is more difficult to successfully confront all of them on your own)
- the personality type and motivations of your perpetrator (for example, if your perpetrator simply mistreats targets for the thrill of a reaction, confrontation may have limited value or worsen the situation)
- the status of your perpetrator (for example, if your perpetrator is viewed as more valuable to your APS agency than you are, then confrontation may be risky since you may not receive support)
- the personality type of your superiors and the general culture of your APS agency (for example, if your superiors and your APS agency lean towards target-blaming, you may be unfairly painted as the wrongdoer for deciding to be confrontational)
- the timing (for example, if you confront your perpetrator after an event that could be manipulated to present you as holding an alleged grievance, this unfortunate coincidental timing may be twisted around to unfairly accuse you of fabricating your claims).
Whenever you confront your perpetrator, ensure that you keep a diary record of each instance, in case you will need this later as evidence of showing that the behaviour was unwanted.
If you decide that it is best to not directly confront your perpetrator, but you are finding it difficult to deal with the continuation of the mistreatment, you could choose to horizontally voice your concerns (that is, informally gather support from colleagues) or vertically voice your concerns (that is, speak with a superior officer or workplace bullying/harassment officer, make a formal complaint to your APS agency's internal investigation area, or take your grievance outside your APS agency).
Obtaining support at the horizontal level requires a patient effort to find out where your colleagues stand and then to mobilise those who are sympathetic, win over some of those who are neutral and to reduce the hostility of some of the opponents. When you have obtained supporters, make sure you are aware of whether they wish to either openly support you or secretly support you, and respect their choices since they also need to protect their interests. (Unfortunately, obtaining support can be difficult in the APS, as many senior APS officers and APS investigators falsely claim that the Privacy Act 1988 prevents targets from discussing their experiences with colleagues, thereby limiting targets' opportunities to obtain support and witness evidence. This naturally aids the APS agency in achieving its goal to 'contain' potential complaints.)
There are three main reasons why you would want supporters at the horizontal level:
- if your perpetrator is aware that you have numerous sympathisers, he or she is less likely to continue with his or her mistreatment
- if you later choose to confront your perpetrator, the chances of successful outrage management (discussed above) is diminished
- to increase your chances of success with exercising the vertical voice, it is important to first have supporters at the horizontal level.
Before choosing to exercise the vertical voice, again, you will need to engage in a risk assessment to determine whether using this option would be worthwhile. The key risk factors for reprisals from your perpetrator, your colleagues, your superiors and your APS agency for making an informal or formal complaint include:
- complaining about a type of mistreatment that is not addressed in your APS agency's policies, procedures or awareness training (as this is relevant to the issue of vicarious liability)
- complaining about mistreatment where the responsibility for the mistreatment occurring lies with senior APS officers
- complaining about a perpetrator who is higher up in the APS hierarchy or who has close connections with employees higher up in the APS hierarchy
- complaining about more than one perpetrator
- complaining about a perpetrator who has more supporters, or more influential supporters, than you
- your APS agency has a target-blaming culture
- lack of any positive outcome from your APS agency's preliminary inquiry/investigation (see the heading 'APS Preliminary Inquiries/Investigations (Creating the Appearance of Official Concern)' below)
- requesting an internal review of the outcome of your APS agency's preliminary inquiry/investigation (see the heading 'The Truth About Internal Reviews (Two Words: 'Frivolous' and 'Vexatious')' below)
- taking your complaint outside your APS agency (see the heading 'Commonwealth External Investigation/Review Agencies (Avoid Them If You Can)').
Whatever way you choose to exercise the voice option, trust your instincts, keep yourself informed, and ensure that you advocate your position as effectively as possible (see the heading 'Advocating Effectively (Logos, Ethos, Pathos, Kairos)' below).
B. The Exit Option
If you feel that there is limited benefit, or the chances of reprisals are high, from voicing concerns about mistreatment, or you have already voiced your concerns while still working for your APS agency and you are suffering from reprisals, then exiting your APS agency should be a serious consideration. Many targets do not favour this option because it puts them at the inconvenience of having to search out another job, or leave a job that they like, when they have done nothing wrong. However, an exit can be the smartest move when it extricates you from an unhealthy and damaging environment. If your exit is a silent one (that is, you have not voiced any concerns), then your chances of positive references may be improved, as the reality is that there is often an unfortunate stigma attached to being a target of workplace bullying, harassment, victimisation and discrimination in the APS.
Of course, the downside of choosing the exit option, as opposed to choosing the voice option, is that the aggregate effect of individuals silently exiting is harmful to future targets in the long-run (in terms of the 'tyranny of small decisions'). Unlike private-sector organisations, APS agencies do not face the same discipline of the free market and therefore silent exits are usually not a strong way to alert and encourage APS agencies to assess and change their internal culture and practices. Thus, the silent exit will protect the short-run private interests of immediate targets, but not the long-run 'public good' that can come from exercising the voice option.
7. Advocating Effectively (Logos, Ethos, Pathos, Kairos)
Being able to effectively advocate for yourself is essential - particularly when you are up against harsh opposition. There are four main elements of effective advocacy identified in the literature:
Also critical to advocating effectively is understanding your audience. If your audience is your colleagues, you should have a general sense of what they are like since you would have worked with them. Although, be aware that no matter how long you have worked with them and trust them, when it comes to prickly issues such as workplace mistreatment, you may well be disappointed by their reactions.
If your audience is official APS complaint-handlers, then you should be very cautious about their mindsets. If you have worked in an area in the APS that deals with public stakeholders, you may know that many APS employees do not generally hold much regard for complainants. You may have heard such APS employees referring to tenacious complainants who are 'nobodies' as 'crazies' and the tenacious complainants who are 'somebodies' as 'difficult'. In some APS agencies, these views have manifested into a widespread cultural view. There is often a complete lack of recognition of the fact that tenacious complainants are frequently a result of the way they have been mishandled by APS employees and the damaging systems set up by the APS - they are made, not born.
The Commonwealth Ombudsman has produced a guide called 'Managing Unreasonable Complainant Conduct' (see the PDF document below) which states the above prejudiced position in a slightly more eloquent manner. A lot of the guide reads like a public servant having a vent session about their work, but read this to get a sense of what an official APS complaint-handler may also be presuming about you.
- appealing to your audience's reason (logos)
- promotion of your good character and credentials (ethos)
- appealing to your audience's emotions (pathos)
- advocating at the right time and in the right forum (kairos).
Also critical to advocating effectively is understanding your audience. If your audience is your colleagues, you should have a general sense of what they are like since you would have worked with them. Although, be aware that no matter how long you have worked with them and trust them, when it comes to prickly issues such as workplace mistreatment, you may well be disappointed by their reactions.
If your audience is official APS complaint-handlers, then you should be very cautious about their mindsets. If you have worked in an area in the APS that deals with public stakeholders, you may know that many APS employees do not generally hold much regard for complainants. You may have heard such APS employees referring to tenacious complainants who are 'nobodies' as 'crazies' and the tenacious complainants who are 'somebodies' as 'difficult'. In some APS agencies, these views have manifested into a widespread cultural view. There is often a complete lack of recognition of the fact that tenacious complainants are frequently a result of the way they have been mishandled by APS employees and the damaging systems set up by the APS - they are made, not born.
The Commonwealth Ombudsman has produced a guide called 'Managing Unreasonable Complainant Conduct' (see the PDF document below) which states the above prejudiced position in a slightly more eloquent manner. A lot of the guide reads like a public servant having a vent session about their work, but read this to get a sense of what an official APS complaint-handler may also be presuming about you.
online_unreasonablecomplainantconductmanual_cwthomb.pdf | |
File Size: | 1714 kb |
File Type: |
A. Logos
Persuasive evidence to support your claims is vital to achieve support. One of the biggest mistakes targets make is thinking that the truth alone is enough and that it should not matter how they speak out. It is this mistaken belief that causes strife for so many naive targets.
There are two ways to approach giving evidence to an APS complaint-taker, but it can be very difficult to determine which approach is safer before making a complaint unless you know of another employee's experiences in your APS agency.
When your APS agency is hostile towards targets, you must not make yourself vulnerable in any way in the early stages of your complaint-making. Usually, the better approach is to not get caught up in the details of your experience, as this may give your APS perpetrator and APS agency ammunition to fight you. Instead, you may want to consider being brief by providing only dates, times and a dispassionate account of your experience, and saving the full account for settings that your APS agency has less control over, such as external investigation/review agencies and the courts. You should also consider whether it is wise in your circumstances to not give your witnesses' names to your APS agency in order to protect your witnesses and to avoid giving your APS agency a head start by them becoming aware of the details of all witnesses' testimonies and leaving you in the dark (as APS agencies usually try to deny/delay complainants access to this evidence).
When you are at the stage of taking your complaint outside your APS agency (at which time you should be involving an advocate/legal representative), then it is usually safer to reveal the details and evidence of your claims. Your evidence will need to be credible and persuasive in order to counter-attack your perpetrator and APS agency's likely cover-up, denial and personal attacks that are tactically used to try to distract from the real issues. The more serious your claims are, the more evidence you will need. (Be aware that your APS agency will try to claim that providing new evidence outside its internal channels means that you and your witnesses are engaging in embellishment, fabrication or collusion, but your advocate/legal representative should be able to advise on various ways to rebut the accusation of recent invention.)
On the other hand, when the APS complaint-taker/APS agency is genuinely concerned about combating workplace mistreatment, it is usually then safer to be more forthcoming about the details of your experiences. Yet, still keep your guard up, just in case the APS complaint-handler/APS agency may not be revealing their true stripes.
Evidence that you provide to the APS complaint-handler, external investigation/review agencies and the courts can take the form of letters, emails, memos, electronic audio/video recordings (these should usually be overt, not covert), diary entries, written witness statements and your own testimony (be aware that the value of this last form of evidence can often be minimised/dismissed by APS agencies unless it suits their self-serving purposes).
Whenever you are attending an informal or formal meeting, it is often a good idea to take along a support person/advocate who you can trust in order to minimise the risk of manipulation/intimidation and so that you are not later left in the position of it being 'your word against theirs' (remembering that if you are lower in the APS hierarchy, it is usually not your word that will be believed). It is also a good idea to encourage any lay support person you are taking along as a witness to read this website so that he or she is more aware of motivations and power dynamics and would therefore be more likely to pick up on important nuances.
Meticulous diary entries briefly recording each relevant event and the full names and positions of people involved is also a very important form of evidence. It is usually better to leave out speculations, personal opinions or feelings of animosity, but include the reactions of those with whom you communicate your concerns to or who witness your mistreatment. Make sure that you date and initial each entry. Alternatively, you can send emails to yourself (but not through your work email, as this may be monitored). This process may seem like a burden, but it can end up being an important investment.
A common problem with diaries as a form of evidence is that they often do not include the history of the mistreatment from the very beginning, since many targets:
Thus, it is very important to accept what is occurring to you as early as possible and to assume that the mistreatment you are receiving may well escalate in the future. However, be aware that despite the consensus on the importance of keeping diary records, APS agencies have still been known to put a negative spin on the activity of keeping diaries, ultimately putting targets in a lose-lose situation.
Obtaining signed written witness statements from colleagues is vitally important. This is because colleagues are notoriously known to be an unreliable class of witnesses. They often refuse to provide evidence or deny/change what they originally stated/witnessed out of fear that their job security/career advancement could be jeopardised or fear that they could also be victimised. This unfortunately leaves complainants in the precarious position of looking like they have possibly embellished/fabricated their claims. Thus, obtaining signed written witness statements as soon as possible after the relevant events makes it harder for colleagues to later deny what they have stated/witnessed. If colleagues refuse to sign their names to claims they make, then it may be better to not take the risk of referring to them if you choose to make a complaint.
Make sure you collect written witness evidence before you voice a complaint, as many senior APS officers and APS investigators (as a part of their 'containment' strategies) will falsely tell you that you cannot discuss your experiences with anyone since this would:
These orders are often followed with the threat of sanctions under the APS Code of Conduct for non-compliance with the order. Unfortunately, the perceived legitimacy of the messengers' status and instructions will often lead to some form of self-censorship (which is what APS agencies count on) and will therefore detrimentally affect your ability to obtain witness evidence. Once the flow of information has dried up, it is harder to rebut your perpetrator, opponent witnesses and APS agency's denials and cover-ups. (Depending on the circumstances, these 'containment' strategies may amount to breaches of various laws - see the Laws & Policies page.)
Lastly, always remember to keep a second set of copies of all evidence at your home or in another safe place (provided this is not unlawful), as it is not unheard of for evidence kept by targets on their work computers and at their workstations to mysteriously go missing.
B. Ethos
In all disputes, it is the person who is viewed as more credible who will be believed. Thus, it is very important that you cultivate and protect a reputation of good character and credentials throughout your working life and personal life.
One of the most popular tactics employed by perpetrators and APS agencies when trying to cover-up and deny a scandal is to discount the complainant's feelings and attack the complainant's integrity, work ethic, motives and mental stability in order to devalue and discredit the complainant and deflect from the real issues. Perpetrators and APS agencies usually do this by:
These tactics are a pernicious way of striking at the heart of the true motivation of the targets' decisions to speak out. Thus, when under personal attack, the way you present yourself and the method of delivery of your messages will determine how persuasive you will be.
In effective advocacy, you will need to convey to your audience that you are of sound sense, high moral character and benevolence. This can be achieved by:
If you present your messages in this way, it becomes more difficult for your opponents to successfully devalue and discredit you and your position.
C. Pathos
In some contexts, displays of passion can be more persuasive than reason, but rarely when it comes to making a complaint about mistreatment in your APS agency. The APS generally has a highly conservative culture focused on maintaining the status quo and therefore displays of emotion in the organisational context can be unfairly portrayed as a weakness in your personality.
Many targets can understandably be distressed and traumatised because of the personal attacks and injustice they have suffered, which manifests into outrage and self-pity. Thus, it can be very difficult for targets to appear 'normal' and to be an effective advocate for themselves because of the strong emotions affecting them. Yet, it is essential that you try your hardest to present yourself in a calm and rational manner, as it is harder to devalue and demonise someone who is making a sincere effort to maintain a professional dialogue.
If you are going to appeal to your audience's emotions, consider focusing more on how and why the mistreatment you are suffering from is objectively considered unjust and unfair rather than focusing on a purely emotional-injury angle.
D. Kairos
Waiting for the right opportunity to speak out has long been recognised as an important aspect of effective advocacy. Some complainants speak out too soon (such as when they do not have enough evidence) or at the wrong moment (such as speaking out after an event that could be manipulated to unfairly suggest fabrication because of an alleged grievance). At the same time, some complainants do not realise when the point in time has come to let issues go, particularly when it is apparent that chances of success are small or further gains will require more effort for far less return. These are matters that need to be considered when assessing the right time to speak out, or to no longer speak out, about mistreatment.
Another common mistake that complainants make is to have trust in official channels, such as internal complaint mechanisms (see the heading 'APS Preliminary Inquiries/Investigations' below), internal review units (see the heading 'The Truth About Internal Reviews' below), external governmental investigation/review bodies (see the heading 'Commonwealth External Investigation/Review Agencies (Avoid Them If You Can)' below) and courts/tribunals (see the heading 'The APS Modus Operandi in Legal Action' below).
Usually utilising official channels in the conventional manner is to play the opponent's game largely by the opponent's rules because APS agencies have all of the advantages - they have more financial resources, greater knowledge and expertise, greater influence, enjoyment of presumed legitimacy and legal authority, unlimited time, little individual responsibility, little organisational accountability, and little emotional investment. And when your APS agency does not comply with the Legal Services Directions 2005, you barely stand a chance (see the Legal Services Directions sub-page).
Official channels also tend to have built-in time delays (thereby causing complainants to relive/hold on to their negative experiences over an artificially prolonged period of time), and they separate and narrow issues rather than focus on the bigger picture issues of injustice (thereby dampening outrage).
In order to minimise angst, rather than utilising official channels with the expectation of achieving conventional justice, you should simply use these channels with the expectation of:
Persuasive evidence to support your claims is vital to achieve support. One of the biggest mistakes targets make is thinking that the truth alone is enough and that it should not matter how they speak out. It is this mistaken belief that causes strife for so many naive targets.
There are two ways to approach giving evidence to an APS complaint-taker, but it can be very difficult to determine which approach is safer before making a complaint unless you know of another employee's experiences in your APS agency.
When your APS agency is hostile towards targets, you must not make yourself vulnerable in any way in the early stages of your complaint-making. Usually, the better approach is to not get caught up in the details of your experience, as this may give your APS perpetrator and APS agency ammunition to fight you. Instead, you may want to consider being brief by providing only dates, times and a dispassionate account of your experience, and saving the full account for settings that your APS agency has less control over, such as external investigation/review agencies and the courts. You should also consider whether it is wise in your circumstances to not give your witnesses' names to your APS agency in order to protect your witnesses and to avoid giving your APS agency a head start by them becoming aware of the details of all witnesses' testimonies and leaving you in the dark (as APS agencies usually try to deny/delay complainants access to this evidence).
When you are at the stage of taking your complaint outside your APS agency (at which time you should be involving an advocate/legal representative), then it is usually safer to reveal the details and evidence of your claims. Your evidence will need to be credible and persuasive in order to counter-attack your perpetrator and APS agency's likely cover-up, denial and personal attacks that are tactically used to try to distract from the real issues. The more serious your claims are, the more evidence you will need. (Be aware that your APS agency will try to claim that providing new evidence outside its internal channels means that you and your witnesses are engaging in embellishment, fabrication or collusion, but your advocate/legal representative should be able to advise on various ways to rebut the accusation of recent invention.)
On the other hand, when the APS complaint-taker/APS agency is genuinely concerned about combating workplace mistreatment, it is usually then safer to be more forthcoming about the details of your experiences. Yet, still keep your guard up, just in case the APS complaint-handler/APS agency may not be revealing their true stripes.
Evidence that you provide to the APS complaint-handler, external investigation/review agencies and the courts can take the form of letters, emails, memos, electronic audio/video recordings (these should usually be overt, not covert), diary entries, written witness statements and your own testimony (be aware that the value of this last form of evidence can often be minimised/dismissed by APS agencies unless it suits their self-serving purposes).
Whenever you are attending an informal or formal meeting, it is often a good idea to take along a support person/advocate who you can trust in order to minimise the risk of manipulation/intimidation and so that you are not later left in the position of it being 'your word against theirs' (remembering that if you are lower in the APS hierarchy, it is usually not your word that will be believed). It is also a good idea to encourage any lay support person you are taking along as a witness to read this website so that he or she is more aware of motivations and power dynamics and would therefore be more likely to pick up on important nuances.
Meticulous diary entries briefly recording each relevant event and the full names and positions of people involved is also a very important form of evidence. It is usually better to leave out speculations, personal opinions or feelings of animosity, but include the reactions of those with whom you communicate your concerns to or who witness your mistreatment. Make sure that you date and initial each entry. Alternatively, you can send emails to yourself (but not through your work email, as this may be monitored). This process may seem like a burden, but it can end up being an important investment.
A common problem with diaries as a form of evidence is that they often do not include the history of the mistreatment from the very beginning, since many targets:
- are usually in a state of denial about their mistreatment in the early stages and therefore do not keep diary records as this would be an admission of their target status (this is an instinctual coping mechanism); or
- understandably never anticipate the escalation of mistreatment and therefore do not see a need to keep diary records in the early stages.
Thus, it is very important to accept what is occurring to you as early as possible and to assume that the mistreatment you are receiving may well escalate in the future. However, be aware that despite the consensus on the importance of keeping diary records, APS agencies have still been known to put a negative spin on the activity of keeping diaries, ultimately putting targets in a lose-lose situation.
Obtaining signed written witness statements from colleagues is vitally important. This is because colleagues are notoriously known to be an unreliable class of witnesses. They often refuse to provide evidence or deny/change what they originally stated/witnessed out of fear that their job security/career advancement could be jeopardised or fear that they could also be victimised. This unfortunately leaves complainants in the precarious position of looking like they have possibly embellished/fabricated their claims. Thus, obtaining signed written witness statements as soon as possible after the relevant events makes it harder for colleagues to later deny what they have stated/witnessed. If colleagues refuse to sign their names to claims they make, then it may be better to not take the risk of referring to them if you choose to make a complaint.
Make sure you collect written witness evidence before you voice a complaint, as many senior APS officers and APS investigators (as a part of their 'containment' strategies) will falsely tell you that you cannot discuss your experiences with anyone since this would:
- have the potential to 'compromise the integrity of any possible future preliminary inquiry/investigation'
- be a breach of the Privacy Act 1988.
These orders are often followed with the threat of sanctions under the APS Code of Conduct for non-compliance with the order. Unfortunately, the perceived legitimacy of the messengers' status and instructions will often lead to some form of self-censorship (which is what APS agencies count on) and will therefore detrimentally affect your ability to obtain witness evidence. Once the flow of information has dried up, it is harder to rebut your perpetrator, opponent witnesses and APS agency's denials and cover-ups. (Depending on the circumstances, these 'containment' strategies may amount to breaches of various laws - see the Laws & Policies page.)
Lastly, always remember to keep a second set of copies of all evidence at your home or in another safe place (provided this is not unlawful), as it is not unheard of for evidence kept by targets on their work computers and at their workstations to mysteriously go missing.
B. Ethos
In all disputes, it is the person who is viewed as more credible who will be believed. Thus, it is very important that you cultivate and protect a reputation of good character and credentials throughout your working life and personal life.
One of the most popular tactics employed by perpetrators and APS agencies when trying to cover-up and deny a scandal is to discount the complainant's feelings and attack the complainant's integrity, work ethic, motives and mental stability in order to devalue and discredit the complainant and deflect from the real issues. Perpetrators and APS agencies usually do this by:
- reframing unfortunate circumstances to create an unfavourable picture of the targets
- searching for 'dirt' in past work records
- inciting colleagues to say negative things about the targets
- telling outright lies about the targets.
These tactics are a pernicious way of striking at the heart of the true motivation of the targets' decisions to speak out. Thus, when under personal attack, the way you present yourself and the method of delivery of your messages will determine how persuasive you will be.
In effective advocacy, you will need to convey to your audience that you are of sound sense, high moral character and benevolence. This can be achieved by:
- choosing an appropriate audience (for example, when writing correspondence, only write to a limited number of individuals/organisations that actually have jurisdiction to act in respect of your complaint)
- knowing when to voice your concerns higher up in the hierarchy (for example, when you do not receive a satisfactory response from an APS officer, it is best to move up to their superior or take your concerns outside your APS agency rather than persist with that same APS officer)
- employing logically probative reasoning and evidence supporting your claims
- ensuring that each point that you make, no matter how small, is accurate (as APS officers will usually fixate on the weakest points of your claims and ignore the stronger points)
- do not jump to premature conclusions and do not embellish or exaggerate your claims no matter how much your perpetrator, opponent witnesses and APS agency embellish, exaggerate or lie outright (if taken too far, your perpetrator, opponent witnesses and APS agency will usually become entangled in their web of dishonesty which will lower their credibility)
- writing and speaking confidently and do not express any doubt about your position (but do not engage in false bravado, as your opponents may be able to see through this and interpret it as a weakness)
- writing and speaking articulately and intelligently (particularly make sure that all documents you write are completely free from spelling and grammatical errors)
- not showing too much overt emotion, speaking with a serious tone and not smiling/laughing (whilst laughter can be a coping mechanism in a stressful situation, it can be unfairly used against you to suggest that your complaint is not serious or you are emotionally unstable)
- viewing your complaint in perspective (remember that there is always someone in a worse situation than you)
- promoting your credentials (for example, university qualifications)
- providing evidence of your work performance and integrity (for example, past positive references and positive performance review reports).
If you present your messages in this way, it becomes more difficult for your opponents to successfully devalue and discredit you and your position.
C. Pathos
In some contexts, displays of passion can be more persuasive than reason, but rarely when it comes to making a complaint about mistreatment in your APS agency. The APS generally has a highly conservative culture focused on maintaining the status quo and therefore displays of emotion in the organisational context can be unfairly portrayed as a weakness in your personality.
Many targets can understandably be distressed and traumatised because of the personal attacks and injustice they have suffered, which manifests into outrage and self-pity. Thus, it can be very difficult for targets to appear 'normal' and to be an effective advocate for themselves because of the strong emotions affecting them. Yet, it is essential that you try your hardest to present yourself in a calm and rational manner, as it is harder to devalue and demonise someone who is making a sincere effort to maintain a professional dialogue.
If you are going to appeal to your audience's emotions, consider focusing more on how and why the mistreatment you are suffering from is objectively considered unjust and unfair rather than focusing on a purely emotional-injury angle.
D. Kairos
Waiting for the right opportunity to speak out has long been recognised as an important aspect of effective advocacy. Some complainants speak out too soon (such as when they do not have enough evidence) or at the wrong moment (such as speaking out after an event that could be manipulated to unfairly suggest fabrication because of an alleged grievance). At the same time, some complainants do not realise when the point in time has come to let issues go, particularly when it is apparent that chances of success are small or further gains will require more effort for far less return. These are matters that need to be considered when assessing the right time to speak out, or to no longer speak out, about mistreatment.
Another common mistake that complainants make is to have trust in official channels, such as internal complaint mechanisms (see the heading 'APS Preliminary Inquiries/Investigations' below), internal review units (see the heading 'The Truth About Internal Reviews' below), external governmental investigation/review bodies (see the heading 'Commonwealth External Investigation/Review Agencies (Avoid Them If You Can)' below) and courts/tribunals (see the heading 'The APS Modus Operandi in Legal Action' below).
Usually utilising official channels in the conventional manner is to play the opponent's game largely by the opponent's rules because APS agencies have all of the advantages - they have more financial resources, greater knowledge and expertise, greater influence, enjoyment of presumed legitimacy and legal authority, unlimited time, little individual responsibility, little organisational accountability, and little emotional investment. And when your APS agency does not comply with the Legal Services Directions 2005, you barely stand a chance (see the Legal Services Directions sub-page).
Official channels also tend to have built-in time delays (thereby causing complainants to relive/hold on to their negative experiences over an artificially prolonged period of time), and they separate and narrow issues rather than focus on the bigger picture issues of injustice (thereby dampening outrage).
In order to minimise angst, rather than utilising official channels with the expectation of achieving conventional justice, you should simply use these channels with the expectation of:
- exposing injustice and unfairness that your perpetrator or APS agency are responsible for (in the form of an official paper trail)
- the possibility of collecting valuable information (such as evidence of cover-up)
- demonstrating your active resistance to mistreatment, thereby ensuring that your perpetrator or APS agency do not get a free ride and may decide to change their behaviour towards future targets based on an effort/benefit ratio
- the possible opportunity for negotiation and settlement of your matter (although be aware that the APS has a reputation, particularly amongst some plaintiff employment lawyers, for generally being unethical or bloody-minded in settlement negotiations)
- the feeling of self-respect from standing up for yourself.
8. Advocacy/Legal Representation Services
Before making any decisions in respect of your mistreatment at work, it can be important to seek advice and representation from an advocate or lawyer. Remember that the aim of any employer is to reduce the prospect of legal liability and protect its public image. Thus, your APS agency has a perverse incentive to find that your claims of workplace bullying, harassment, victimisation or discrimination are unsubstantiated or unfounded. This is particularly the case when an employee you complain about is higher up in the APS hierarchy than you.
In trying to avoid liability, targets can be taken advantage of during times of emotional vulnerability and be further victimised or manipulated into making statements that are not in their best interests. Furthermore, it can be very difficult to be fully articulate when you are distressed and confused by the circumstances you are in. Consequently, it is better to play things safe by not answering any questions until you have sought external advice, and not partaking in any mediation or APS preliminary inquiries/investigations unless you have a reliable support person, advocate or lawyer (make sure to check your advocacy/representation rights under policy and procedure documents, your enterprise/collective bargaining agreement and workplace laws). At a minimum, advocates and lawyers should protect your dignity.
If you still decide to go ahead with your complaint without receiving any assistance from an advocate or lawyer, do not bother trying to make threats of legal action yourself, as this will not scare anyone and may actually backfire. The making of such threats should be left to advocates and lawyers, and threats should probably not be made unless you have the intention to actually take legal action.
You may think that the better alternative is to seek advice and representation from your union, as it would be free or less costly, or even be perceived as less threatening. This can be true in some circumstances. However, unions' duties may be complicated when they are also advising and representing other employees involved in your complaint, such as the perpetrator, and therefore unions may find themselves caught in the middle of a dispute. An unfortunate consequence of unions attempting to serve two or more members with opposing positions in a dispute is that a complainant with less sway (in terms of hierarchical position or other power imbalances) may indirectly feel pressured into minimising his or her grievances or compromise on matters that really should not be negotiable. Other times, complainants prefer more tenacious representation that is usually provided by an external advocate or lawyer, since, unlike unions, they do not have an ongoing relationship with the employer.
Whilst it may seem unfair to pay hundreds of dollars for an external advocate or lawyer when you have done nothing wrong, the fact is that paying a few hundred dollars for their services in the early stages can save you from making dire mistakes that may cost a lot more in the future, not just in terms of further professional fees or jeopardised compensation claims, but also negative impacts on your career, reputation and welfare.
When you retain the services of an advocate or lawyer, do not assume that your advocate or lawyer is capable of doing everything on his or her own. You will need to provide your advocate or lawyer with all relevant facts and specific instructions, and suggest angles and tactical approaches to your case. You can also keep your fees down if you try to do your own research and draft correspondence. Have an open and frank discussion with your advocate or lawyer from the outset about what each of your expectations are.
It is very important that you obtain the services of an advocate or lawyer who is knowledgeable, efficient, wholly supportive, caring and passionate about your case throughout its course. In particular, you need an advocate or lawyer who is focused on results rather than process.
It is also important to recognise that the high-stakes relationship between an advocate/lawyer and a client requires regular tending to keep it strong. This can be done by:
You may also be able to get additional free legal advice from public legal organisations, depending on your matter and personal circumstances. A few of these include:
In trying to avoid liability, targets can be taken advantage of during times of emotional vulnerability and be further victimised or manipulated into making statements that are not in their best interests. Furthermore, it can be very difficult to be fully articulate when you are distressed and confused by the circumstances you are in. Consequently, it is better to play things safe by not answering any questions until you have sought external advice, and not partaking in any mediation or APS preliminary inquiries/investigations unless you have a reliable support person, advocate or lawyer (make sure to check your advocacy/representation rights under policy and procedure documents, your enterprise/collective bargaining agreement and workplace laws). At a minimum, advocates and lawyers should protect your dignity.
If you still decide to go ahead with your complaint without receiving any assistance from an advocate or lawyer, do not bother trying to make threats of legal action yourself, as this will not scare anyone and may actually backfire. The making of such threats should be left to advocates and lawyers, and threats should probably not be made unless you have the intention to actually take legal action.
You may think that the better alternative is to seek advice and representation from your union, as it would be free or less costly, or even be perceived as less threatening. This can be true in some circumstances. However, unions' duties may be complicated when they are also advising and representing other employees involved in your complaint, such as the perpetrator, and therefore unions may find themselves caught in the middle of a dispute. An unfortunate consequence of unions attempting to serve two or more members with opposing positions in a dispute is that a complainant with less sway (in terms of hierarchical position or other power imbalances) may indirectly feel pressured into minimising his or her grievances or compromise on matters that really should not be negotiable. Other times, complainants prefer more tenacious representation that is usually provided by an external advocate or lawyer, since, unlike unions, they do not have an ongoing relationship with the employer.
Whilst it may seem unfair to pay hundreds of dollars for an external advocate or lawyer when you have done nothing wrong, the fact is that paying a few hundred dollars for their services in the early stages can save you from making dire mistakes that may cost a lot more in the future, not just in terms of further professional fees or jeopardised compensation claims, but also negative impacts on your career, reputation and welfare.
When you retain the services of an advocate or lawyer, do not assume that your advocate or lawyer is capable of doing everything on his or her own. You will need to provide your advocate or lawyer with all relevant facts and specific instructions, and suggest angles and tactical approaches to your case. You can also keep your fees down if you try to do your own research and draft correspondence. Have an open and frank discussion with your advocate or lawyer from the outset about what each of your expectations are.
It is very important that you obtain the services of an advocate or lawyer who is knowledgeable, efficient, wholly supportive, caring and passionate about your case throughout its course. In particular, you need an advocate or lawyer who is focused on results rather than process.
It is also important to recognise that the high-stakes relationship between an advocate/lawyer and a client requires regular tending to keep it strong. This can be done by:
- paying your bills on time
- respecting your advocate/lawyer's time burdens and other responsibilities
- being a master of the facts of your case so that you can provide complete and reliable information about your case on request
- informing your advocate/lawyer of any initiatives you wish to personally take
- being completely honest, open and respectful at all times.
You may also be able to get additional free legal advice from public legal organisations, depending on your matter and personal circumstances. A few of these include:
- ACT Women's Legal Centre
- Kingsford Legal Centre
- Public Interest Advocacy Centre
- Welfare Rights & Legal Centre.
9. Mediation (The Good, The Bad and The Ugly)
The value of mediation in the workplace is highly questionable when dealing with personal grievances such as workplace bullying, harassment, victimisation and discrimination. You should definitely never allow anyone to pressure you into partaking in a mediation session when your claims have been found to be substantiated, as expecting targets to enter into agreements with their perpetrators constitutes a form of punishment to the targets. For the same reason, you should also not allow anyone to pressure you into partaking in a mediation session even when your claims have not yet been formally substantiated or have formally been found to be unsubstantiated (since an unsubstantiated finding does not mean that your claims are untrue, it just technically means there is not enough evidence available at the time to support your claims).
Given that targets usually face a detrimental power imbalance, they are often not in an equal bargaining position and may feel pressured to compromise on matters that should not be negotiable. For mediation to occur, parties to a dispute need to be accurately assessed as being the right candidates for mediation because they are genuine equals and approach mediation in good faith. It is essential that a presiding mediator be viewed by all participants as suitably qualified, fair, independent, impartial, non-judgmental, and has a genuine record of professionalism and integrity. It is also important to allow all parties to have a support person/advocate with them.
When these prerequisites are met, this is the only time mediation can truly be considered as appropriate and legitimate. Otherwise, taking part in a mediation session that is run by amateurs or where candidates have not been properly assessed for suitability means that the odds are stacked against the target from the start and the target will nearly always suffer some form of detriment.
Given that targets usually face a detrimental power imbalance, they are often not in an equal bargaining position and may feel pressured to compromise on matters that should not be negotiable. For mediation to occur, parties to a dispute need to be accurately assessed as being the right candidates for mediation because they are genuine equals and approach mediation in good faith. It is essential that a presiding mediator be viewed by all participants as suitably qualified, fair, independent, impartial, non-judgmental, and has a genuine record of professionalism and integrity. It is also important to allow all parties to have a support person/advocate with them.
When these prerequisites are met, this is the only time mediation can truly be considered as appropriate and legitimate. Otherwise, taking part in a mediation session that is run by amateurs or where candidates have not been properly assessed for suitability means that the odds are stacked against the target from the start and the target will nearly always suffer some form of detriment.
10. Beware Human Resources
Many targets make the mistake of trusting Human Resources personnel with their concerns about workplace mistreatment, only to find that Human Resources was less than helpful or even made matters worse. This is because Human Resources personnel's loyalties will nearly always lie with senior management of an APS agency, not individual targets.
In APS agencies where there is a secretive, insular and insecure culture, Human Resources is likely to engage in unscrupulous actions in order to cover for, and protect, senior management from hassles, scrutiny and accountability. Disturbingly, Human Resources personnel will describe their unscrupulous actions as 'professional', no matter how unreasonable and absurd such spin is.
Some examples of shady conduct carried out by Human Resources against complainants of mistreatment in APS agencies include:
Based on the above, it is best to approach Human Resources with great caution and understand that Human Resources personnel are not confidantes or counsellors for APS employees to turn to. As soon as your suspect shady conduct by Human Resources personnel, consider approaching an advocate/legal representative for advice, and make sure that all communications between you and Human Resources personnel is documented and kept in a safe place (see the heading 'Advocacy/Legal Representation Services' above).
In APS agencies where there is a secretive, insular and insecure culture, Human Resources is likely to engage in unscrupulous actions in order to cover for, and protect, senior management from hassles, scrutiny and accountability. Disturbingly, Human Resources personnel will describe their unscrupulous actions as 'professional', no matter how unreasonable and absurd such spin is.
Some examples of shady conduct carried out by Human Resources against complainants of mistreatment in APS agencies include:
- claiming complainants cannot remain at their workplace (sometimes based on dubious grounds) and degradingly parading complainants out of the workplace under guard, or noticeable supervision, like a criminal
- cutting pass access of complainants without telling them so that the complainants are put in a publicly humiliating circumstance when they discover for the first time, in front of their colleagues, that their pass has been disabled
- misusing confidential information in complainants' personal files against complainants, such as medical records
- hiring private investigators to 'investigate' complainants without the complainants' knowledge (which is more akin to spying)
- secretly briefing complainants' perpetrators and the perpetrators' supporters, and divulging personal information about the complainants to them
- secretly briefing complainants' medical practitioners to try to influence the medical practitioners' diagnoses and prognoses in favour of the APS agency's agenda
- manipulating or pressuring complainants to allow Human Resources personnel to attend the complainants' private consultations with their medical practitioners under the guise of 'care' and 'support', when really it is about Human Resources trying to fish for personal information about the complainants and have greater control over the complainants
- compulsorily referring complainants to psychiatric examinations against the complainants' free will and providing the APS hired psychiatrists with inaccurate or wildly misleading information about the complainants (see the heading 'Compulsory Medical Referrals (The 'Soviet' Style of Victimisation)' above)
- making threats against complainants, coercing complainants or misleading complainants (such as in relation to trying to have complainants sign documents which are not in the complainants' interests)
- failing to engage in impartial fact-finding processes
- disingenuously characterising workplace mistreatment as a 'miscommunication', 'misunderstanding' or a 'mere personality clash' instead of calling it what it is
- unlawfully soliciting personal information from complainants
- engaging in fraudulent cover-up
- constant changing of case managers resulting in instability and frustrations for complainants.
Based on the above, it is best to approach Human Resources with great caution and understand that Human Resources personnel are not confidantes or counsellors for APS employees to turn to. As soon as your suspect shady conduct by Human Resources personnel, consider approaching an advocate/legal representative for advice, and make sure that all communications between you and Human Resources personnel is documented and kept in a safe place (see the heading 'Advocacy/Legal Representation Services' above).
11. APS Preliminary Inquiries/Investigations (Creating the Appearance of 'Official Concern')
APS agencies usually use 'preliminary inquiries' and 'investigations' to address 'formal complaints' of breaches of the APS Code of Conduct. Despite the different labels given by APS agencies to these processes, in practice, many 'preliminary inquiries' and 'investigations' are the same in substance. Essentially, preliminary inquiries are supposed to be used to determine whether allegations are sufficiently substantial to warrant investigation and investigations are supposed to be used to determine whether the evidence establishes that a breach of the APS Code of Conduct has occurred.
The process of preliminary inquiries/investigations should be set out in your APS agency's APS Code of Conduct implementation procedures. In August 2011, the Commonwealth Government produced the Australian Government Investigation Standards 2011 (AGIS), which APS agencies must also comply with (see the PDF document below). Of concern is the compulsory requirement to electronically record complainants during interviews that are of an administrative nature, despite the fact that victims of crime are not subjected to such treatment
(this requirement is further discussed at the Reform Issues page.) If you are subjected to an electronically recorded interview, you may want to consider taking along your own electronic recording device in case your APS agency 'misplaces' the recording.
Essentially, preliminary inquiries/investigations are supposed to be fact-finding processes by internal (or sometimes external) investigators. It is usually at the investigation stage that formal interviews are conducted with the complainant, the perpetrator and any witnesses. Usually, thereafter, the investigators report on their findings and recommend a decision to the APS agency's Secretary's delegate for APS Code of Conduct matters. There are three findings that investigators can recommend in investigations:
The standard of proof for deciding complaints is the balance of probabilities, that is, it is more probable than not that there was a breach of the APS Code of Conduct. It is common practice for the Secretary's delegate to uncritically agree with the investigators' recommendations. If a complaint is found to be substantiated by the Secretary's delegate, then corrective action may be authorised.
Be aware that many APS agencies' procedures either lack necessary detail or their preliminary inquiry/investigation processes have shortfalls which bring into question the legitimacy of their processes. Whilst APS agencies may claim that the main reason why procedure documents need to be this way is so that investigators can operate within a flexible framework to the benefit of all parties, it can really be more of a deliberate strategic design to simply protect the APS agency's interests. Firstly, the more rules that are documented in preliminary inquiry/investigation procedures (that is, procedural certainty and transparency), the higher the risk of non-compliance by investigators and the Secretary's delegate, and therefore the higher the risk of legal liability for the APS agency (the Australian Public Service Commission freely admits this in its 'Handling Misconduct' guide - see the APS Policies sub-page). Secondly, investigators can introduce new rules (which serve to benefit the APS agency) just before, or during, an interview with the complainant, thereby limiting the benefit to the complainant of being adequately pre-informed about all rules.
Some APS agencies have more detailed guides to supplement their procedures document, in which case those APS agencies' preliminary inquiry/investigation processes may be viewed with greater legitimacy where their guides are of an acceptable standard.
Before taking part in a preliminary inquiry/investigation, targets need to be aware that they are likely to face many disadvantages in utilising this channel, as discussed below, and targets should proceed with great caution if they go down this path. (The issues discussed below may also be applicable in cases where a preliminary inquiry/investigation is used as a bullying, harassment, victimisation or discrimination tactic against APS employees who are accused of breaching the APS Code of Conduct because they are viewed as a threat, are disliked by an influential APS perpetrator/APS agency, or are seen as superfluous to the APS agency's needs.)
The first disadvantage is that preliminary inquiries/investigations can often be designed to merely create the appearance of 'official concern' and serve the APS agency's interests, rather than being a genuine fact-finding process. Investigators' loyalties will always lie with their APS agency, not individual employees. With the aim of all APS agencies being to reduce the prospect of legal liability and protect their public image, investigators have a perverse incentive to 'contain' complaints and find that complaints are unsubstantiated or unfounded, or that the target invited the mistreatment. This is particularly the case when the perpetrator is higher up in the APS hierarchy than the complainant.
Some 'containment' strategies employed by some investigators (and other senior APS officers) include:
These strategies can be so successful in achieving self-censorship (which is what APS agencies are counting on) that some APS officers/investigators will pressure/force targets into a preliminary inquiry/investigation so that:
Depending on the circumstances, these 'containment' strategies and sham preliminary inquires/investigations may amount to breaches of various laws (see the Laws & Policies page).
In trying to avoid legal liability, investigators may also try to take advantage of complainants during times of emotional vulnerability, and may victimise complainants or manipulate complainants into making statements that are not in their best interests. Examples of inappropriate conduct by some investigators include:
If investigators are engaging in these types of behaviours without being reprimanded/disciplined by their APS agencies, then you can be fairly confident that the investigators have an unofficial mandate from their APS agencies to engage in these types of behaviours.
The second disadvantage of utilising preliminary inquiries/investigations is that preliminary inquiries/investigations provide little open justice and fairness to complainants. Specifically:
The third disadvantage of utilising preliminary inquiries/investigations is that you will usually have to deal with investigators who are under-qualified. APS agencies often view prior informal training, such as police detective work or basic certificates in government/fraud investigation (which can take anywhere between 2 and 32 weeks to complete, depending on the education provider) as adequate prerequisites to being an investigator for workplace bullying, harassment, victimisation and discrimination issues. Some investigators simply receive 'learn as you go' training. These substandard types of training are not sufficient to understand and competently deal with the sensitivities and complexities that go with workplace bullying, harassment, victimisation and discrimination. They are also not sufficient enough to enable investigators to have a truly thorough understanding of relevant complex workplace, human rights and administrative laws. (Some investigators believe that if they can recite the law or copy and paste the law, then this must mean that they adequately understand the law.)
As soon as you get the sense that:
In the case of this second consideration, be aware that APS agencies may try to falsely claim that you do not have a right to seek assistance from external investigation/review agencies or the external investigation/review agencies may try to pressure you to utilise your APS agency's internal processes first. It is up to you as to how strongly you want to resist this pressure. At this stage, you should really be seeking legal advice.
Also keep in mind that you may still face challenges when dealing with external investigation/review agencies (see the heading 'Commonwealth External Investigation/Review Agencies (Avoid Them If You Can)' below), and you may face the risk of reprisals for taking your complaint outside your APS agency. Yet, you may also face worse challenges and the same degree of reprisals by using internal preliminary inquiry/investigation channels anyway. You will need to make a risk assessment based on your circumstances, your knowledge of the culture of your APS agency, and the reputation and behaviour of APS officers you are dealing with.
If you choose to bypass your APS agency's preliminary inquiry/investigation channels and take your complaint outside your APS agency, be prepared that your APS agency will try to argue that it is absolved of vicarious liability (in any future legal action you may take) because you did not use its internal preliminary inquiry/investigation channels to allow your APS agency to address your complaint first. Thus, it is vital that you provide thorough and persuasive reasons as to why you do not have confidence in your APS agency's internal preliminary inquiry/investigation processes in order to protect your prospects in any future legal action (see the APS Policies sub-page for some guidance). Being able to obtain evidence from past complainants, who have had difficulties with your APS agency or APS officers you are dealing with, may assist in supporting your claims of distrust and lack of confidence.
The process of preliminary inquiries/investigations should be set out in your APS agency's APS Code of Conduct implementation procedures. In August 2011, the Commonwealth Government produced the Australian Government Investigation Standards 2011 (AGIS), which APS agencies must also comply with (see the PDF document below). Of concern is the compulsory requirement to electronically record complainants during interviews that are of an administrative nature, despite the fact that victims of crime are not subjected to such treatment
(this requirement is further discussed at the Reform Issues page.) If you are subjected to an electronically recorded interview, you may want to consider taking along your own electronic recording device in case your APS agency 'misplaces' the recording.
Essentially, preliminary inquiries/investigations are supposed to be fact-finding processes by internal (or sometimes external) investigators. It is usually at the investigation stage that formal interviews are conducted with the complainant, the perpetrator and any witnesses. Usually, thereafter, the investigators report on their findings and recommend a decision to the APS agency's Secretary's delegate for APS Code of Conduct matters. There are three findings that investigators can recommend in investigations:
- the complaint is substantiated;
- the complaint is unsubstantiated (which means that there was not enough evidence at the time to support the complaint); or
- the complaint is unfounded (which means that the complainant intentionally fabricated his or her complaint).
The standard of proof for deciding complaints is the balance of probabilities, that is, it is more probable than not that there was a breach of the APS Code of Conduct. It is common practice for the Secretary's delegate to uncritically agree with the investigators' recommendations. If a complaint is found to be substantiated by the Secretary's delegate, then corrective action may be authorised.
Be aware that many APS agencies' procedures either lack necessary detail or their preliminary inquiry/investigation processes have shortfalls which bring into question the legitimacy of their processes. Whilst APS agencies may claim that the main reason why procedure documents need to be this way is so that investigators can operate within a flexible framework to the benefit of all parties, it can really be more of a deliberate strategic design to simply protect the APS agency's interests. Firstly, the more rules that are documented in preliminary inquiry/investigation procedures (that is, procedural certainty and transparency), the higher the risk of non-compliance by investigators and the Secretary's delegate, and therefore the higher the risk of legal liability for the APS agency (the Australian Public Service Commission freely admits this in its 'Handling Misconduct' guide - see the APS Policies sub-page). Secondly, investigators can introduce new rules (which serve to benefit the APS agency) just before, or during, an interview with the complainant, thereby limiting the benefit to the complainant of being adequately pre-informed about all rules.
Some APS agencies have more detailed guides to supplement their procedures document, in which case those APS agencies' preliminary inquiry/investigation processes may be viewed with greater legitimacy where their guides are of an acceptable standard.
Before taking part in a preliminary inquiry/investigation, targets need to be aware that they are likely to face many disadvantages in utilising this channel, as discussed below, and targets should proceed with great caution if they go down this path. (The issues discussed below may also be applicable in cases where a preliminary inquiry/investigation is used as a bullying, harassment, victimisation or discrimination tactic against APS employees who are accused of breaching the APS Code of Conduct because they are viewed as a threat, are disliked by an influential APS perpetrator/APS agency, or are seen as superfluous to the APS agency's needs.)
The first disadvantage is that preliminary inquiries/investigations can often be designed to merely create the appearance of 'official concern' and serve the APS agency's interests, rather than being a genuine fact-finding process. Investigators' loyalties will always lie with their APS agency, not individual employees. With the aim of all APS agencies being to reduce the prospect of legal liability and protect their public image, investigators have a perverse incentive to 'contain' complaints and find that complaints are unsubstantiated or unfounded, or that the target invited the mistreatment. This is particularly the case when the perpetrator is higher up in the APS hierarchy than the complainant.
Some 'containment' strategies employed by some investigators (and other senior APS officers) include:
- ordering targets to not speak to anyone about their complaint under the cover of 'avoiding potential compromise of the integrity of the preliminary inquiry/investigation'
- falsely telling targets that they are prevented from discussing their experiences with anyone under the Privacy Act 1988
- avoidance of, or discouraging targets from, reporting serious workplace mistreatment that may amount to criminal action to the police, suggesting that the 'APS Code of Conduct Police' are a substitute for the real police.
These strategies can be so successful in achieving self-censorship (which is what APS agencies are counting on) that some APS officers/investigators will pressure/force targets into a preliminary inquiry/investigation so that:
- 'containment' strategies can be used 'legitimately'
- the APS agency has an opportunity to hold a monopoly over all information (thereby disempowering the target)
- a pre-set unfavourable finding for the target can be reached so that the matter can be said to be 'finalised and closed'.
Depending on the circumstances, these 'containment' strategies and sham preliminary inquires/investigations may amount to breaches of various laws (see the Laws & Policies page).
In trying to avoid legal liability, investigators may also try to take advantage of complainants during times of emotional vulnerability, and may victimise complainants or manipulate complainants into making statements that are not in their best interests. Examples of inappropriate conduct by some investigators include:
- pressuring complainants into being interviewed when they have a medical certificate to be away from work
- trying to solicit the legal action intentions of complainants or privileged legal advice that complainants have received
- relying on separate confidential information belonging to interviewees that is not relevant to the complaint
- understating complainants' legal, policy and administrative rights whilst simultaneously overstating other interviewees' legal, policy and administrative rights
- concealing interviewees' legal, policy and administrative rights
- being belligerent towards complainants and threatening complainants (usually during conversations that are not audio recorded)
- physically intimidating/distracting complainants during face-to-face interviews whilst modulating their voices so that they sound friendly/professional on the audio recording, thereby making it more difficult for complaints of physical intimidation/distraction to be believed
- engaging in amateur psychology/psychiatry
- trying to solicit the private medical histories of interviewees
- unfairly painting complainants as wrongdoers or troublemakers (particularly where complainants have tried to stand up for themselves against their perpetrators)
- denying procedural fairness to complainants (some investigators even refuse to provide records of meetings/interviews that complainants participated in, falsely claiming that the Privacy Act 1988 prevents them from doing this)
- denying interviewees their right to an independent support person/advocate/legal representative
- secretly instructing complainants' support persons that they cannot say anything during interviews with the complainants (leaving complainants ignorant and vulnerable to a lack of intervention when required)
- asking inappropriate leading questions and verballing interviewees
- inciting witnesses to make negative comments about complainants;
- not absolving themselves from investigations when they hold a conflict of interest or are biased towards or against an interviewee
- exaggerating/misrepresenting complainants' complaints in reports so that a recommendation can be made for the complaints to be found to be unsubstantiated or unfounded or, conversely, investigators downplaying complainants' complaints in reports so that they can be interpreted as frivolous and even vexatious
- refusing to disclose professional backgrounds, claiming that the Privacy Act 1988 allows for non-disclosure
- refusing to investigate serious mistreatment altogether.
If investigators are engaging in these types of behaviours without being reprimanded/disciplined by their APS agencies, then you can be fairly confident that the investigators have an unofficial mandate from their APS agencies to engage in these types of behaviours.
The second disadvantage of utilising preliminary inquiries/investigations is that preliminary inquiries/investigations provide little open justice and fairness to complainants. Specifically:
- since preliminary inquiries/investigations are usually conducted by internal APS employees, it is arguable that preliminary inquiries/investigations can never be truly 'independent'
- even when investigators are external contractors (that is, they are paid by the APS agency), their 'independence' is still questionable, as there is a perverse incentive to satisfy the APS agency in order to increase the chances of future contract work
- although the principle of procedural fairness is to be applied in all preliminary inquiries/investigations, there is no way for complainants to confidently know they have been provided with procedural fairness, as some investigators will stretch out the provisions of the Privacy Act 1988 to try to justify non-disclosure of the identity of witnesses interviewed or the testimony given by witnesses and perpetrators (and insecure/spiteful witnesses and perpetrators have been known to make petty and outrageous statements about targets under the protection of the preliminary inquiry/investigation process)
- there is usually a significant lack of rules of evidence, so evidence of questionable quality may be accepted by an investigator/Secretary's delegate which would not normally be accepted in a court or tribunal
- with investigators holding a monopoly on the information they have obtained in their preliminary inquiry/investigation processes, complainants have no real way of knowing how much evidence needs to be provided and what issues need to be addressed in order to persuade the investigators to find that their claims are substantial
- when complainants' complaints are found to be unsubstantiated or unfounded, they are not subsequently provided with the reasons for such decisions under the claim that the Privacy Act 1988 prevents disclosure of the reasons
- an APS agency's disciplinary decisions cannot be disclosed to complainants under the Privacy Act 1988, which can leave complainants with the impression that their complaints were not taken seriously
- preliminary inquiries/investigations are designed to leave complainants in the position of having to emerge either as a 'winner' or a 'loser', rather than being left with the possibility of a more neutral outcome, which puts complainants at risk of further victimisation if they emerge as a 'loser' (thus, complainants need substantial vindication).
The third disadvantage of utilising preliminary inquiries/investigations is that you will usually have to deal with investigators who are under-qualified. APS agencies often view prior informal training, such as police detective work or basic certificates in government/fraud investigation (which can take anywhere between 2 and 32 weeks to complete, depending on the education provider) as adequate prerequisites to being an investigator for workplace bullying, harassment, victimisation and discrimination issues. Some investigators simply receive 'learn as you go' training. These substandard types of training are not sufficient to understand and competently deal with the sensitivities and complexities that go with workplace bullying, harassment, victimisation and discrimination. They are also not sufficient enough to enable investigators to have a truly thorough understanding of relevant complex workplace, human rights and administrative laws. (Some investigators believe that if they can recite the law or copy and paste the law, then this must mean that they adequately understand the law.)
As soon as you get the sense that:
- you APS agency does not have adequate internal preliminary inquiry/investigation procedures;
- your APS agency/APS officers are simply trying to 'contain' your complaint;
- your APS agency/APS officers are trying to victimise you;
- your APS agency/APS officers are using the preliminary inquiry/investigation processes for other illegitimate and inappropriate purposes; or
- the mistreatment you are receiving may amount to a criminal action,
- attempt to answer certain questions during the interview with 'I will take that question on notice and provide you with a written response' (which is arguably a legitimate response given that preliminary inquiries/investigations are supposed to be of an administrative nature - although you may be accused of breaching the APS Code of Conduct if you choose this option); or
- bypass/discontinue partaking in your APS agency's internal preliminary inquiry/investigation processes and take your matter to external investigation/review agencies, such as the Australian Human Rights Commission or Fair Work Australia.
In the case of this second consideration, be aware that APS agencies may try to falsely claim that you do not have a right to seek assistance from external investigation/review agencies or the external investigation/review agencies may try to pressure you to utilise your APS agency's internal processes first. It is up to you as to how strongly you want to resist this pressure. At this stage, you should really be seeking legal advice.
Also keep in mind that you may still face challenges when dealing with external investigation/review agencies (see the heading 'Commonwealth External Investigation/Review Agencies (Avoid Them If You Can)' below), and you may face the risk of reprisals for taking your complaint outside your APS agency. Yet, you may also face worse challenges and the same degree of reprisals by using internal preliminary inquiry/investigation channels anyway. You will need to make a risk assessment based on your circumstances, your knowledge of the culture of your APS agency, and the reputation and behaviour of APS officers you are dealing with.
If you choose to bypass your APS agency's preliminary inquiry/investigation channels and take your complaint outside your APS agency, be prepared that your APS agency will try to argue that it is absolved of vicarious liability (in any future legal action you may take) because you did not use its internal preliminary inquiry/investigation channels to allow your APS agency to address your complaint first. Thus, it is vital that you provide thorough and persuasive reasons as to why you do not have confidence in your APS agency's internal preliminary inquiry/investigation processes in order to protect your prospects in any future legal action (see the APS Policies sub-page for some guidance). Being able to obtain evidence from past complainants, who have had difficulties with your APS agency or APS officers you are dealing with, may assist in supporting your claims of distrust and lack of confidence.
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12. The Truth about Internal Reviews (Two Words: 'Frivolous' and 'Vexatious')
Many complainants would understandably presume that if an injustice cannot be dealt with adequately at the lower level of an APS agency, then someone higher up in the APS agency should be able to fix the problem. After all, surely this is what internal review procedures were set up to do? Unfortunately, the usual experience is just the opposite. Rarely will a review decision deviate from an original decision about a complaint. After all, with evidence and reasons behind original decisions about complaints often being cloaked in secrecy and weasel words, how can complainants formulate successful arguments? What is worse is that many APS agencies can turn on complainants, accusing them of seeking reviews that are 'frivolous' and 'vexatious' and, thereby, dismiss their requests for legitimate review. Complainants who are faced with these unfair and grossly inaccurate labels can be devastated, as the labels strike at the heart of complainants’ true motives, that is, to seek vindication, protection and justice.
The Macquarie Dictionary defines the word ‘frivolous’ as meaning ‘of little or no weight, worth or importance and lacking seriousness or sense’. Various statues and case law define the word ‘vexatious’. It usually is interpreted to mean:
The first two interpretations of the word ‘vexatious’ focus on the complainant’s intentions. Thus, theoretically, APS agencies should be producing persuasive evidence to prove actual intention of complainants to be vexatious. However, rarely do APS agencies provide persuasive evidence or even logical reasons for determining the intent of complainants to be vexatious in internal review decisions. The third interpretation of ‘vexatious’ would also arguably require APS agencies to meet a high threshold, but often persuasive reasons are not provided on this ground either.
In fact, the courts have made it clear that the use of frivolous and vexatious defences are not to be invoked lightly. For example, in the case of Re Davison (1997) ALR 259, it was said that it was only in 'very clear cases' that such decisions can be made. It was said that 'if, on the face of the "process", there is a possibility that it is not frivolous, vexatious or an abuse of the process ..., the matter will be left to be dealt with in accordance with the ordinary curial processes'.
Given the tendencies of APS agencies to label complaints as 'frivolous' and ‘vexatious’, it would appear that the APS sometimes presumes that the actual exercising of a legal right is a frivolous and vexatious act. Yet, the fact is that review mechanisms are meant to be used, not to just merely be in tokenistic existence.
Depending on the circumstances, complainants may be able to seek recourse under the Administrative Decisions (Judicial Review) Act 1977 if their complaints have been inaccurately labelled as 'frivolous' or 'vexatious', resulting in the unfair stripping of review access rights (see the Administrative Law sub-page). Such labels may also amount to unlawful victimisation or defamation, depending on the circumstances.
There are various reasons why internal reviews do not provide a satisfactory process and outcome for complainants. Firstly, organisational micro-politics and the organisational belief in protecting the portrayed legitimacy of preliminary inquiries/investigations mean that the original decision is likely to be upheld. Secondly, since rarely internal review decision-makers are sufficiently educated and trained in the complexities and sensitivities of workplace bullying, harassment, victimisation and discrimination, they are dismissive of subtle/covert mistreatment that can only be properly understood by those who have actually been in the targets’ positions. Thirdly, in cases where the targets are lower in the APS hierarchy than the APS perpetrators, the more senior APS perpetrators are viewed as needing protection in order to maintain the lines of authority. Finally, some scholars believe that internal review mechanisms are purely set up for symbolic purposes only.
It is up to you to decide whether to utilise internal review mechanisms. Keep in mind, however, that if you are considering pursuing legal redress, you may be better off bypassing the internal review procedures (and the Australian Public Service Commission’s/Merit Protection Commission's procedures for secondary reviews) given the high likelihood of an unsatisfactory outcome and process. If you do choose to go down the internal review path and your complaint is labelled 'frivolous' and 'vexatious', you should seriously consider contesting these damaging labels in written documentation, as they imply a lack of sound judgment and provocative/ulterior motives on your part, and such a damaging paper trail may be used against you to your detriment by your APS agency at some other point in the future.
The Macquarie Dictionary defines the word ‘frivolous’ as meaning ‘of little or no weight, worth or importance and lacking seriousness or sense’. Various statues and case law define the word ‘vexatious’. It usually is interpreted to mean:
- having the intention to annoy, embarrass, harass or other wrongful purpose (see, for example, the case of Attorney-General v Wentworth (1988) 14 NSWLR 481)
- seeking to achieve a collateral purpose (see, for example, the case of Re Cameron (1996) QCA 37)
- pursuing untenable or manifestly groundless claims as to be utterly hopeless (which really should fall into the 'frivolous' category) (see, for example, the case of Walton v Gardiner (1993) 177 CLR 378).
The first two interpretations of the word ‘vexatious’ focus on the complainant’s intentions. Thus, theoretically, APS agencies should be producing persuasive evidence to prove actual intention of complainants to be vexatious. However, rarely do APS agencies provide persuasive evidence or even logical reasons for determining the intent of complainants to be vexatious in internal review decisions. The third interpretation of ‘vexatious’ would also arguably require APS agencies to meet a high threshold, but often persuasive reasons are not provided on this ground either.
In fact, the courts have made it clear that the use of frivolous and vexatious defences are not to be invoked lightly. For example, in the case of Re Davison (1997) ALR 259, it was said that it was only in 'very clear cases' that such decisions can be made. It was said that 'if, on the face of the "process", there is a possibility that it is not frivolous, vexatious or an abuse of the process ..., the matter will be left to be dealt with in accordance with the ordinary curial processes'.
Given the tendencies of APS agencies to label complaints as 'frivolous' and ‘vexatious’, it would appear that the APS sometimes presumes that the actual exercising of a legal right is a frivolous and vexatious act. Yet, the fact is that review mechanisms are meant to be used, not to just merely be in tokenistic existence.
Depending on the circumstances, complainants may be able to seek recourse under the Administrative Decisions (Judicial Review) Act 1977 if their complaints have been inaccurately labelled as 'frivolous' or 'vexatious', resulting in the unfair stripping of review access rights (see the Administrative Law sub-page). Such labels may also amount to unlawful victimisation or defamation, depending on the circumstances.
There are various reasons why internal reviews do not provide a satisfactory process and outcome for complainants. Firstly, organisational micro-politics and the organisational belief in protecting the portrayed legitimacy of preliminary inquiries/investigations mean that the original decision is likely to be upheld. Secondly, since rarely internal review decision-makers are sufficiently educated and trained in the complexities and sensitivities of workplace bullying, harassment, victimisation and discrimination, they are dismissive of subtle/covert mistreatment that can only be properly understood by those who have actually been in the targets’ positions. Thirdly, in cases where the targets are lower in the APS hierarchy than the APS perpetrators, the more senior APS perpetrators are viewed as needing protection in order to maintain the lines of authority. Finally, some scholars believe that internal review mechanisms are purely set up for symbolic purposes only.
It is up to you to decide whether to utilise internal review mechanisms. Keep in mind, however, that if you are considering pursuing legal redress, you may be better off bypassing the internal review procedures (and the Australian Public Service Commission’s/Merit Protection Commission's procedures for secondary reviews) given the high likelihood of an unsatisfactory outcome and process. If you do choose to go down the internal review path and your complaint is labelled 'frivolous' and 'vexatious', you should seriously consider contesting these damaging labels in written documentation, as they imply a lack of sound judgment and provocative/ulterior motives on your part, and such a damaging paper trail may be used against you to your detriment by your APS agency at some other point in the future.
13. Commonwealth External Investigation/Review Agencies (Avoid Them If You Can)
(Please note: this section should be read in conjunction with the section headed 'The APS Modus Operandi in Legal Action' below, as complaints to the Commonwealth external investigation/review agencies listed below will likely amount/lead to legal action.)
The following Commonwealth agencies can be classed as investigation/external review agencies, which you may direct enquiries and complaints to about workplace bullying, harassment, victimisation or discrimination:
If you are still an employee of your APS agency, you have to consider the risks of reprisals from your perpetrator, colleagues and your APS agency if you choose to utilise these outside channels. Usually it is better to first leave your APS agency and then pursue these channels. Although, there are times when going to these outside channels whilst you are still with your APS agency can result in favourable outcomes. You will need to make an assessment based on your circumstances and form contingency plans before executing a decision.
Before lodging a complaint, it is a good idea to find out from these investigation/review agencies what level of detail they require for a complaint to be made, the procedures that they follow and approximate timeframes for processing complaints (try to get the investigation/review agency to record this information in writing). Depending on your issue and circumstances, it can sometimes be necessary to make a complaint to these investigation/review agencies in a certain order and to give specific instructions.
It is usually better that you have an advocate or lawyer speak on your behalf when dealing with these investigation/review agencies, as your matter will generally be treated with greater seriousness and you are shielded from the stress that can come from dealing with investigation/review agencies.
If you choose to deal with these investigation/review agencies yourself, it is important that you be as calm and as articulate as humanly possible. Although you may have every right to be upset and angry because of the distressing circumstances you are facing, the sad fact is that bureaucrats employed in these investigation/review agencies will generally respond better if they are dealing with a complainant who speaks and writes intelligently with minimal displays of emotion. (Of course, this is by no means an excuse for investigation/review agencies' bureaucrats to not respond properly to complainants who are justifiably distressed, upset or angry.)
If you want to be really hypervigilant so as to avoid any hurtful accusations of being an 'unusually persistent complainant' (as opposed to the more likely reality of simply having the energy and commitment to pursue your rights), you may want to think twice before doing the following:
Of course, the above list of things to avoid is inane, but they have been mindlessly interpreted by investigation/review agency bureaucrats in a negative light (even as far as suggesting that such behaviour is indicative of 'quarrelsome paranoia'), with such judgmental bureaucrats paying little regard to context, the dubious nature of 'evidence' relied upon in forming such erroneous opinions about complainants and the bureaucrats' own contributing behaviour. (To see even more absurd examples of complainant actions interpreted in a negative light, see Grant Lester, Beth Wilson, Lynn Griffon and Paul E Mullen, 'Unusually Persistent Complainants', British Journal of Psychiatry (2004), vol. 8).
Be aware that investigation/review agencies generally have limited jurisdiction and are under-resourced. Therefore you may not receive the full assistance that you require and the processing of your complaint may take a considerable length of time. Unfortunately, many complaints can be drawn out for months, even years, which can add to complainants' frustrations and suffering.
Also be aware that a considerable number of bureaucrats employed in investigation/review agencies tend to be more concerned with crossing off cases on their workload lists (since reduced workloads are viewed as a mark of a good employee in APS performance reviews) and they therefore usually look for, or sometimes make up, narrow technical arguments as to why they cannot assist you. Such bureaucrats also tend to be easily swayed by submissions made by respondent APS agencies, as these bureaucrats hold the prejudiced view that APS agencies have greater legitimacy than individual complainants (and APS agencies know that they have this advantage). Sometimes you may just have the misfortune of dealing with bureaucrats who are plainly ignorant of relevant laws, policies, procedures and facts. Other times, you may come across bureaucrats who are just so unprofessional and downright rude, that they will unjustifiably ignore your correspondence and phone calls, or treat you with disdain.
Coming up against this type of obstructive mindset, incompetence and ingrained procedural delays can be very irksome, but again it is important to be careful about displaying feelings of frustration or anger, as bureaucrats will rarely take any responsibility for causing your frustrations and may try to unfairly use displays of justified emotions against you.
You also need to be careful about making complaints about difficult bureaucrats employed in these investigation/review agencies. When you enter the system as a complainant, you can be up against a general prejudiced view that you are 'just another whinger'. Thus, superior officers of difficult bureaucrats will usually automatically believe their employees' words over yours. Unless your complaint about a difficult bureaucrat is very serious, the best approach to take (if you are not using an advocate or lawyer) is to:
Try to save the complaint-making about difficult bureaucrats until after your matter has been finalised in order to avoid possible discreet reprisals. If you receive excellent service from a bureaucrat, it is a good thing to write a note of praise to the bureaucrat's supervisor, so that way the right types of bureaucrats can be rewarded.
Despite some of the limitations and shortcomings of investigation/review agencies, there are a number of positive by-products of contacting these agencies. Firstly, you are able to expose (in the form of an official paper trail) the unprofessional, unethical or illegal conduct of your APS perpetrator or APS agency. If a substantial number of similar complaints are registered with each investigation/review agency, a concerning pattern or culture in your APS agency can emerge, which may give rise to a warning/reprimand being issued to your APS agency or future inquiries of your APS agency. APS agencies know that a real value of complainants going to investigation/review agencies can sometimes lie in exposure. Consequently, they will usually engage in outrage management tactics in an attempt to protect their reputation (see the heading 'Outrage Management Tactics' above). If you are not prepared, or do not have the emotional strength, to deal with your APS agency's possible brutal attacks against your claim and character, then you should reconsider complaining to an investigation/review agency.
Secondly, given that there is a stronger emphasis on open justice in investigation/review agencies than in internal APS preliminary inquiries/investigations, you may also obtain valuable information in APS agencies' documented responses to investigation/review agencies, which can uncover previously unknown matters and can provide you with favourable evidence (such as evidence of cover-up and deception). APS agencies know that a real value of complainants going to investigation/review agencies can be the collection of valuable information. Consequently, APS agencies will try to withhold information and documents from investigation/review agencies that they know will be useful to you (which is why it is very important that you access documents through the Freedom of Information Act 1982 as quickly as possible if the investigation/review agency is not prepared to, or does not have the power to, collect information or documents from your APS agency itself - see the Freedom of Information Law sub-page).
Thirdly, by utilising the channels open to you with investigation/review agencies, you set a precedent for actively resisting mistreatment, thereby ensuring that your perpetrator and APS agency do not get a free ride. Instead, your perpetrator or APS agency will usually face the cost and burden of preparing responses to defend themselves. As a result, your perpetrator or APS agency may decide to change their behaviour towards future targets based on an effort/benefit ratio.
Fourthly, lodging a complaint with these investigation/review agencies can open up the opportunity to negotiate and settle your case. Yet, be aware that the APS has a reputation, particularly amongst some plaintiff employment lawyers, for generally being unethical or bloody-minded in settlement negotiations and therefore you have lower chances of a successful negotiation compared to claims involving other types of respondent employers.
Fifthly, by standing up for yourself, you can count on the feeling of self-respect and personal satisfaction that you did the right thing and that you lived your values (and do not allow your opponents to contaminate this feeling).
At the same time, however, you need weigh up the above positive by-products against the real risk of investigation/review agencies 'rubber-stamping' the mistreatment you have suffered.
The following Commonwealth agencies can be classed as investigation/external review agencies, which you may direct enquiries and complaints to about workplace bullying, harassment, victimisation or discrimination:
- Australian Human Rights Commission (for human rights matters)
- Fair Work Ombudsman (for workplace rights matters)
- Safe Work Australia (for work health and safety matters)
- Office of the Australian Information Commissioner (for privacy and FOI matters)
- Australian Public Service Commission (for APS review matters)
- Comcare (for workplace injury matters)
- Commonwealth Ombudsman (for administrative action matters).
If you are still an employee of your APS agency, you have to consider the risks of reprisals from your perpetrator, colleagues and your APS agency if you choose to utilise these outside channels. Usually it is better to first leave your APS agency and then pursue these channels. Although, there are times when going to these outside channels whilst you are still with your APS agency can result in favourable outcomes. You will need to make an assessment based on your circumstances and form contingency plans before executing a decision.
Before lodging a complaint, it is a good idea to find out from these investigation/review agencies what level of detail they require for a complaint to be made, the procedures that they follow and approximate timeframes for processing complaints (try to get the investigation/review agency to record this information in writing). Depending on your issue and circumstances, it can sometimes be necessary to make a complaint to these investigation/review agencies in a certain order and to give specific instructions.
It is usually better that you have an advocate or lawyer speak on your behalf when dealing with these investigation/review agencies, as your matter will generally be treated with greater seriousness and you are shielded from the stress that can come from dealing with investigation/review agencies.
If you choose to deal with these investigation/review agencies yourself, it is important that you be as calm and as articulate as humanly possible. Although you may have every right to be upset and angry because of the distressing circumstances you are facing, the sad fact is that bureaucrats employed in these investigation/review agencies will generally respond better if they are dealing with a complainant who speaks and writes intelligently with minimal displays of emotion. (Of course, this is by no means an excuse for investigation/review agencies' bureaucrats to not respond properly to complainants who are justifiably distressed, upset or angry.)
If you want to be really hypervigilant so as to avoid any hurtful accusations of being an 'unusually persistent complainant' (as opposed to the more likely reality of simply having the energy and commitment to pursue your rights), you may want to think twice before doing the following:
- sending emails very late at night or in the early hours of the morning
- using highlighters or coloured pens in your letters
- underlining words
- using inverted commas
- writing in margins of your letters
- adding many attachments
- talking to someone in person at the agency without making a prior appointment
- engaging in frequent or lengthy communication
- insisting on having your 'day in court'
- continuously varying the nature and grounds of your complaint.
Of course, the above list of things to avoid is inane, but they have been mindlessly interpreted by investigation/review agency bureaucrats in a negative light (even as far as suggesting that such behaviour is indicative of 'quarrelsome paranoia'), with such judgmental bureaucrats paying little regard to context, the dubious nature of 'evidence' relied upon in forming such erroneous opinions about complainants and the bureaucrats' own contributing behaviour. (To see even more absurd examples of complainant actions interpreted in a negative light, see Grant Lester, Beth Wilson, Lynn Griffon and Paul E Mullen, 'Unusually Persistent Complainants', British Journal of Psychiatry (2004), vol. 8).
Be aware that investigation/review agencies generally have limited jurisdiction and are under-resourced. Therefore you may not receive the full assistance that you require and the processing of your complaint may take a considerable length of time. Unfortunately, many complaints can be drawn out for months, even years, which can add to complainants' frustrations and suffering.
Also be aware that a considerable number of bureaucrats employed in investigation/review agencies tend to be more concerned with crossing off cases on their workload lists (since reduced workloads are viewed as a mark of a good employee in APS performance reviews) and they therefore usually look for, or sometimes make up, narrow technical arguments as to why they cannot assist you. Such bureaucrats also tend to be easily swayed by submissions made by respondent APS agencies, as these bureaucrats hold the prejudiced view that APS agencies have greater legitimacy than individual complainants (and APS agencies know that they have this advantage). Sometimes you may just have the misfortune of dealing with bureaucrats who are plainly ignorant of relevant laws, policies, procedures and facts. Other times, you may come across bureaucrats who are just so unprofessional and downright rude, that they will unjustifiably ignore your correspondence and phone calls, or treat you with disdain.
Coming up against this type of obstructive mindset, incompetence and ingrained procedural delays can be very irksome, but again it is important to be careful about displaying feelings of frustration or anger, as bureaucrats will rarely take any responsibility for causing your frustrations and may try to unfairly use displays of justified emotions against you.
You also need to be careful about making complaints about difficult bureaucrats employed in these investigation/review agencies. When you enter the system as a complainant, you can be up against a general prejudiced view that you are 'just another whinger'. Thus, superior officers of difficult bureaucrats will usually automatically believe their employees' words over yours. Unless your complaint about a difficult bureaucrat is very serious, the best approach to take (if you are not using an advocate or lawyer) is to:
- confidently know and articulate your rights
- limit communications to emails and letters (and correspond as little as possible)
- speak and write in a formal and straight-to-the-point manner
- stay committed to your position
- meticulously record all misconduct and correct all errors made by the bureaucrat (for possible later use).
Try to save the complaint-making about difficult bureaucrats until after your matter has been finalised in order to avoid possible discreet reprisals. If you receive excellent service from a bureaucrat, it is a good thing to write a note of praise to the bureaucrat's supervisor, so that way the right types of bureaucrats can be rewarded.
Despite some of the limitations and shortcomings of investigation/review agencies, there are a number of positive by-products of contacting these agencies. Firstly, you are able to expose (in the form of an official paper trail) the unprofessional, unethical or illegal conduct of your APS perpetrator or APS agency. If a substantial number of similar complaints are registered with each investigation/review agency, a concerning pattern or culture in your APS agency can emerge, which may give rise to a warning/reprimand being issued to your APS agency or future inquiries of your APS agency. APS agencies know that a real value of complainants going to investigation/review agencies can sometimes lie in exposure. Consequently, they will usually engage in outrage management tactics in an attempt to protect their reputation (see the heading 'Outrage Management Tactics' above). If you are not prepared, or do not have the emotional strength, to deal with your APS agency's possible brutal attacks against your claim and character, then you should reconsider complaining to an investigation/review agency.
Secondly, given that there is a stronger emphasis on open justice in investigation/review agencies than in internal APS preliminary inquiries/investigations, you may also obtain valuable information in APS agencies' documented responses to investigation/review agencies, which can uncover previously unknown matters and can provide you with favourable evidence (such as evidence of cover-up and deception). APS agencies know that a real value of complainants going to investigation/review agencies can be the collection of valuable information. Consequently, APS agencies will try to withhold information and documents from investigation/review agencies that they know will be useful to you (which is why it is very important that you access documents through the Freedom of Information Act 1982 as quickly as possible if the investigation/review agency is not prepared to, or does not have the power to, collect information or documents from your APS agency itself - see the Freedom of Information Law sub-page).
Thirdly, by utilising the channels open to you with investigation/review agencies, you set a precedent for actively resisting mistreatment, thereby ensuring that your perpetrator and APS agency do not get a free ride. Instead, your perpetrator or APS agency will usually face the cost and burden of preparing responses to defend themselves. As a result, your perpetrator or APS agency may decide to change their behaviour towards future targets based on an effort/benefit ratio.
Fourthly, lodging a complaint with these investigation/review agencies can open up the opportunity to negotiate and settle your case. Yet, be aware that the APS has a reputation, particularly amongst some plaintiff employment lawyers, for generally being unethical or bloody-minded in settlement negotiations and therefore you have lower chances of a successful negotiation compared to claims involving other types of respondent employers.
Fifthly, by standing up for yourself, you can count on the feeling of self-respect and personal satisfaction that you did the right thing and that you lived your values (and do not allow your opponents to contaminate this feeling).
At the same time, however, you need weigh up the above positive by-products against the real risk of investigation/review agencies 'rubber-stamping' the mistreatment you have suffered.
14. The APS Modus Operandi in Legal Action (Know What You're Up Against)
One of the best contexts to be a perpetrator of bullying, harassment, victimisation and discrimination is the APS. This is because the perpetrator usually benefits from the APS agency’s marshalling of its resources and commitment to protect the perpetrator in order to protect the APS agency from legal liability, ethical liability and reputational damage. In fact, where an APS perpetrator is personally sued by the target, the perpetrator can obtain Commonwealth funded legal representation under the Legal Services Directions 2005, usually from the Australian Government Solicitor (AGS) or a top tier law firm. Targets who assert their legal rights, on the other hand, usually attract retaliation from their APS agency instead of protection, and they have to fund their own legal expenses.
Legal action can be taken on the basis of various laws and through various external investigation/review agencies or the courts/tribunals, depending on your claims (see the Laws & Policies page). If you are advised that you have a legal basis to take action, you need to first establish what you want to achieve and whether legal action is the most appropriate tool. Beneficial reasons for taking legal action can include:
However, you also need to be aware of the costs that may be involved in taking legal action. These can include:
You then need to assess the probabilities and possibilities of the benefits and costs based on your circumstances to obtain a more accurate picture of whether it is worth enduring the risks involved in legal action. The costs of legal action are discussed generally below.
A. Time and Effort involved in Preparation
Preparation is a key to success in legal action. Like sports, this includes mental and physical preparation, studying the rules, finding out all that you can about your opponents and working out the best strategies for success. This preparation is essential since, in terms of the APS's resources, the deck is stacked against you no matter how solid your evidence or astute your strategies. In order to try to address this power imbalance and to try to create a fair fight, you need to be setting the agenda, keeping your opponents on the back foot and understand tactics. If you are forced into the position of defending yourself against unfair attacks on your credibility, use this as an opportunity to display your opponents’ lack of integrity and professionalism so that their disinformation and smear campaign backfires. If done correctly, your APS agency and their legal representatives' wounds will be self-inflicted.
Legal action against your APS agency not only requires intimate knowledge of relevant laws, but also APS policies. Unfortunately, few lawyers are deeply knowledgeable of the latter, which is why you will need to fill this knowledge gap through your own research. It is also astounding how many senior APS employees are ignorant of APS policies. Thus, you may well find many examples of non-compliance with APS policies by your APS agency.
When it comes to deciding whether to list your perpetrators individually as respondents in addition to your APS agency, you need to think out the pros and cons. Listing individual perpetrators alongside your APS agency increases the size of your opponent and it can be highly traumatising to have direct dealings with your perpetrators. However, the spectre of broader personal liability can create a greater incentive within your APS agency’s ranks to settle your case.
When submitting your claim, it is important to provide all possible acts of bullying, harassment, victimisation and discrimination, as you may not be allowed to amend your claim later. However, you will probably be allowed to add to your claim if your APS agency/legal representative's response to your legal action amounts to victimisation or discrimination. Another reason for doing this is that adding new information later will likely be twisted around by your APS agency/legal representative to suggest that you are reconstructing or fabricating your claims. This is a sad denial of the fact that many complainants:
If you are seeking monetary compensation, be sure to specifically list all types of detriment you have suffered, such as loss of income, loss of APS benefits, reputational damage, psychological injury, emotional distress, related physical illness, medical bills, lowered credit rating and any other direct or indirect impacts. Also seek legal costs.
If your information about the time and effort it takes for your type of legal action to be seen to its end is limited, the rule of thumb for determining how long legal action will roughly take and how much effort is roughly involved is to estimate how long the process should take if it was run efficiently and then multiply that by between 5 and 10 to get an estimate of how long and how much effort it may take in reality.
B. Financial Expenses
Legal fees can go into the thousands and tens of thousands of dollars when it comes to legal action. Your legal costs can go up even higher if your APS agency/legal representative do not comply with the Legal Services Directions 2005 (see the Legal Services Directions sub-page). There can be other related expenses too, such as costs for professional counselling, medical appointments, phone calls, photocopying, printing, stationery, and even thank-you presents for your supporters.
There are various ways you can reduce your legal costs, such as doing your own research and drafting your own documents. More importantly, when it looks likely that you are going to have to take your legal matter to court/tribunals, complete as much discovery of your opponent’s position/documents as you can at the administrative level (that is, through external investigation/review agencies) before moving a case to court/tribunals. The administrative level is usually much less expensive than discovery procedures in court/tribunals. (Note that when you are seeking information under the Freedom of Information Act 1982, you must not be trying to circumvent restrictions imposed by a court/tribunals on access to documents, otherwise you can be declared vexatious and your application will not be processed - see the Freedom of Information Law sub-page.)
If your information about how much money your type of legal action will cost is limited, the rule of thumb for determining how much your legal action will roughly cost is to estimate how much it would cost if it was handled sensibly and then multiply that by between 5 and 10 to get an estimate of how much it may cost in reality.
C. Diversion from/Delay of Other More Effective Options
You need to think about the opportunity cost of taking legal action. Remember that success through official channels is usually not about being right, but about winning against your opponent’s tactics. The APS has a reputation amongst some plaintiff employment lawyers for generally being unethical or bloody-minded in legal action. In negotiations, their preference seems to be to take a competitive or avoidance approach rather than a collaborative or compromising approach.
If going through official channels is not a good tactic in your circumstances and will therefore waste your time, then you need to consider alternative options. Coming up with an alternative plan may require an open mind and creative thought.
D. Prolonged/Exacerbated Trauma
Taking on an institution is a long, lonely and stressful task. Very few people in your usual social network will share or understand your experience. APS agencies have all of the advantages in legal action - they have more financial resources, greater knowledge and expertise, greater influence, enjoyment of presumed legitimacy and legal authority, unlimited time, little individual responsibility, little organisational accountability, and little emotional investment. And when your APS agency and their legal representative do not comply with the Legal Services Directions 2005, you barely stand a chance (see the Legal Services Directions sub-page).
It is critical that you have enough stamina and resilience to see your action through until the end (this is not necessarily just the legal action, but any shift to the policy and public relations realm as well). Quitting mid-stream will only further embolden your APS agency and intensify the pattern of institutional repression. Thus, before considering going down the legal action path, you should ensure that your psychological/emotional injuries and related physical illnesses have stabilised (keeping in mind statutory time limits), be sure that you can cope with the stresses, seek assurances that you have the backing of your supporters in the long-run (you can seldom take on an institution by yourself), and have a sound exit strategy if things do not turn out as you anticipated.
When in the midst of a legal action, resist becoming obsessed with it and allowing your ego to be invested in it. A measure of detachment is beneficial for your well-being and your effectiveness. Your ability to be at your best is essential. Unfortunately, however, the strain and pressure make it more likely you will be at your worst. Regardless of your initial strength, the cumulative attacks are likely to wear you down. Handling the pressure can be more important than the strength of your evidence, quality of legal representation, persuasiveness of your case theory, shrewdness of your strategies or number of your supporters. (This is why it can be so important to have an advocate/legal representative be your mouthpiece as much as possible.)
Be aware that the APS legal representative’s role is to try to block every move that you make and, in this process, outrage management tactics and other forms of victimisation will come to the forefront. There can be no limit to the petty and shameful lengths an APS agency and their legal representatives can go to in defending against a legal action, and their unscrupulous tactics can even be more harmful than the initial mistreatment you complained about. Be prepared for the following conduct:
Focusing on the inadequacies of the target (and, let us face it, who does not have any inadequacies?) or manufacturing inadequacies of the target is the APS’s most popular smokescreen tactic to cloud the real issues at hand. APS agencies can be so unflinchingly committed to these methods that you may suffer perception shock and even come to believe the false story they concocted about you. This institutional victimisation will greatly add to the trauma that you will suffer - do not underestimate this.
Often the real psychological and emotional damage is not realised until after your legal matter is over, as you would have had to artificially delay the healing process by ‘keeping it together’ during the legal action and you would have been unwillingly forced to continually relive your negative experiences throughout the legal action. The longer the legal action is drawn out for, the longer it takes to heal. Professional counselling to cope with the additional stress during and after legal action may be an invaluable investment.
E. Worse Work Situation (If you still work at your APS Agency)
Sometimes your work situation may be improved by taking legal action (although, there are usually subtle forms of residual victimisation still in existence, such as ostracism and blockage of promotions or transfers). However, your work situation may become worse as a result of taking legal action, making it unbearable for you to stay. Generally, if you are seriously considering taking legal action against your APS agency, it is better to look for work elsewhere if it is possible.
F. Gagging Clauses (In Settlement Agreements)
You are likely to be exposed to a form of alternative dispute resolution (ADR) before going to court, such as mediation or conciliation. The purpose of ADR is not to seek 'the truth', but rather to help participants seek a resolution acceptable to both sides - and this is where settlement of your matter can usually occur.
There are some risks with ADR. Firstly, the mediator/conciliator may not be suitably qualified, fair, independent, impartial, non-judgemental, or have a genuine record of professionalism and integrity. If you do not have confidence in the mediator/conciliator, you may want to consider requesting an alternative mediator/conciliator (but be restrained in taking up this option). Secondly, you are likely to face a power imbalance, which is why you should usually have an advocate/legal representative present and have as many people on your side as there are on the other side. Thirdly, if you are stuck in a room for many hours under enormous pressure to reach an agreement, the risk of making unwise concessions increases as time goes on and your energy flags. Thus, try to limit the time for discussions or take breaks.
Settlement offers can be quite attractive, as it means you can pay off those mounting legal bills and finally put your claim to rest. However, beware from the outset of the gagging clause! Gagging clauses usually contain varying forms of confidentiality clauses and non-disparagement clauses (which prevents the expression, or incitement of others expressing, a low opinion, regardless of how truthful or fair the remark is) that form part of the deed of release (that is, the written terms of settlement). Despite the APS Values of openness, the fact that the Legal Services Directions 2005 states that an APS agency is only to impose confidentiality terms in a settlement where it is necessary to protect the whole of the Commonwealth's interests, and the fact that the Legal Services Directions 2005 does not contain a provision about non-disparagement clauses (see the Legal Services Directions sub-page), the fact is that your APS agency will insist on some kind of gagging clause: no clause, no settlement. The upshot of these clauses, if you agree to them, is that you will not obtain formal vindication (in fact, liability will probably be denied in a deed of release) and you will be unlikely to speak about your experience to help others facing the same APS perpetrators/APS agency. Additionally, your APS agency will likely require you to absolve individual APS perpetrators from any legal action you are entitled to take against them personally (which can be used as a bargaining tool to increase any compensation payout).
The usual course is that your APS agency will push for the broadest gagging clause that they can have you sign to. Generally, depending on how much your APS agency wants to settle or wants to buy your silence, you may have some room to bargain for a narrower gagging clause - so consider holding out until your APS agency has reached a censorship area that you feel you can live with. It best not to accept a gagging clause if it is not mutually applied. Even if it is mutual, be aware that it has recently been discovered that APS agencies are not in the practice of informing relevant APS employees of the existence of mutual non-disparagement clauses in settlement agreements, thereby making them exclusively in favour of the APS agency and its employees. This brings into question the legal validity of such clauses. Therefore, make sure you have written evidence of relevant APS employees being made aware of the existence of any gagging clause. If the employees refuse to be bound by it, seek written evidence of what your APS agency proposes to do about it.
If you do agree to a gagging clause, do not think that this will protect you from negative references. Spiteful referees will find ways to subtly paint you in a bad light in a way that cannot attract the 'disparaging' label. You can also subsequently be in a position that your spiteful supervisor will refuse to give you a reference outright - so make sure you incorporate into your Deed of Release your entitlement to positive oral and written references.
All in all, it is highly questionable that the APS should make such clauses mandatory when it is making payouts with public money. It is arguable that such gagging clauses should only be included if it is mutually wanted and agreed to, and is necessary. The subject of gagging clauses is discussed further at the Reform Issues page.
G. Losing
Whilst the courts/tribunals generally try to make what is fair to fit the law, your chances of winning can be an unknown quantity, no matter how strong your evidence and how shrewd your strategies are. An adverse ruling can be damaging to you in countless ways, embolden your APS perpetrator/APS agency and intensify the pattern of institutional repression. Even if you were to win, the win can be anti-climactic, as it would have likely followed overcoming many unnecessary hurdles put in front of you.
Throughout the process, view yourself as a 'consumer of justice' and regularly reassess the facts, your case theories, your strategies, your goals, your circumstances and your capabilities. Ask yourself these questions:
Such reflection is vital. This is because there are several common psychological factors that make people overestimate their chance of success, and to gamble when the odds are very bad. These factors are:
If you are as realistic as possible about your chances of success when considering whether to go down the legal path, you are more likely to prevent a course leading to an adverse outcome or starting on a path that you will inevitably have to quit part way through.
If your information about your chance of success in legal action is limited, the rule of thumb for roughly determining your chance of success is to estimate your chance of success if everything was fair and divide that by between 5 and 10 to get an estimate of your roughly probable chance of success.
Legal action can be taken on the basis of various laws and through various external investigation/review agencies or the courts/tribunals, depending on your claims (see the Laws & Policies page). If you are advised that you have a legal basis to take action, you need to first establish what you want to achieve and whether legal action is the most appropriate tool. Beneficial reasons for taking legal action can include:
- exposing the problem
- preventing continuation of the problem
- setting an example/precedent
- not letting your APS perpetrator/APS agency have a free ride
- having a relatively objective party (that is, your advocate/legal representative) chastise your perpetrator/APS agency/their legal representative for their behaviour (this may be the only time when they are exposed to realism)
- monetary and non-monetary compensation
- receiving an unqualified and sincere apology (which can help tremendously helpful in the healing process)
- improved work situation (if you still work at your APS agency)
- reclaiming self-respect
- vindication.
However, you also need to be aware of the costs that may be involved in taking legal action. These can include:
- time and effort involved in preparation
- financial expenses
- diversion from/delay of other more effective options
- prolonged/exacerbated trauma
- worse work situation (if you still work at your APS agency)
- gagging clauses (in settlement agreements)
- losing.
You then need to assess the probabilities and possibilities of the benefits and costs based on your circumstances to obtain a more accurate picture of whether it is worth enduring the risks involved in legal action. The costs of legal action are discussed generally below.
A. Time and Effort involved in Preparation
Preparation is a key to success in legal action. Like sports, this includes mental and physical preparation, studying the rules, finding out all that you can about your opponents and working out the best strategies for success. This preparation is essential since, in terms of the APS's resources, the deck is stacked against you no matter how solid your evidence or astute your strategies. In order to try to address this power imbalance and to try to create a fair fight, you need to be setting the agenda, keeping your opponents on the back foot and understand tactics. If you are forced into the position of defending yourself against unfair attacks on your credibility, use this as an opportunity to display your opponents’ lack of integrity and professionalism so that their disinformation and smear campaign backfires. If done correctly, your APS agency and their legal representatives' wounds will be self-inflicted.
Legal action against your APS agency not only requires intimate knowledge of relevant laws, but also APS policies. Unfortunately, few lawyers are deeply knowledgeable of the latter, which is why you will need to fill this knowledge gap through your own research. It is also astounding how many senior APS employees are ignorant of APS policies. Thus, you may well find many examples of non-compliance with APS policies by your APS agency.
When it comes to deciding whether to list your perpetrators individually as respondents in addition to your APS agency, you need to think out the pros and cons. Listing individual perpetrators alongside your APS agency increases the size of your opponent and it can be highly traumatising to have direct dealings with your perpetrators. However, the spectre of broader personal liability can create a greater incentive within your APS agency’s ranks to settle your case.
When submitting your claim, it is important to provide all possible acts of bullying, harassment, victimisation and discrimination, as you may not be allowed to amend your claim later. However, you will probably be allowed to add to your claim if your APS agency/legal representative's response to your legal action amounts to victimisation or discrimination. Another reason for doing this is that adding new information later will likely be twisted around by your APS agency/legal representative to suggest that you are reconstructing or fabricating your claims. This is a sad denial of the fact that many complainants:
- assume that initially providing every detail of the story is unwanted by their audience;
- may not realise the significance of information until: after they have thought and reflected on the issues more deeply; after their initial summary claims have not been taken seriously by complaint-takers; or after their opponents have provided information that needs to be counter-argued with new information;
- recall other pertinent information after trauma has subsided.
If you are seeking monetary compensation, be sure to specifically list all types of detriment you have suffered, such as loss of income, loss of APS benefits, reputational damage, psychological injury, emotional distress, related physical illness, medical bills, lowered credit rating and any other direct or indirect impacts. Also seek legal costs.
If your information about the time and effort it takes for your type of legal action to be seen to its end is limited, the rule of thumb for determining how long legal action will roughly take and how much effort is roughly involved is to estimate how long the process should take if it was run efficiently and then multiply that by between 5 and 10 to get an estimate of how long and how much effort it may take in reality.
B. Financial Expenses
Legal fees can go into the thousands and tens of thousands of dollars when it comes to legal action. Your legal costs can go up even higher if your APS agency/legal representative do not comply with the Legal Services Directions 2005 (see the Legal Services Directions sub-page). There can be other related expenses too, such as costs for professional counselling, medical appointments, phone calls, photocopying, printing, stationery, and even thank-you presents for your supporters.
There are various ways you can reduce your legal costs, such as doing your own research and drafting your own documents. More importantly, when it looks likely that you are going to have to take your legal matter to court/tribunals, complete as much discovery of your opponent’s position/documents as you can at the administrative level (that is, through external investigation/review agencies) before moving a case to court/tribunals. The administrative level is usually much less expensive than discovery procedures in court/tribunals. (Note that when you are seeking information under the Freedom of Information Act 1982, you must not be trying to circumvent restrictions imposed by a court/tribunals on access to documents, otherwise you can be declared vexatious and your application will not be processed - see the Freedom of Information Law sub-page.)
If your information about how much money your type of legal action will cost is limited, the rule of thumb for determining how much your legal action will roughly cost is to estimate how much it would cost if it was handled sensibly and then multiply that by between 5 and 10 to get an estimate of how much it may cost in reality.
C. Diversion from/Delay of Other More Effective Options
You need to think about the opportunity cost of taking legal action. Remember that success through official channels is usually not about being right, but about winning against your opponent’s tactics. The APS has a reputation amongst some plaintiff employment lawyers for generally being unethical or bloody-minded in legal action. In negotiations, their preference seems to be to take a competitive or avoidance approach rather than a collaborative or compromising approach.
If going through official channels is not a good tactic in your circumstances and will therefore waste your time, then you need to consider alternative options. Coming up with an alternative plan may require an open mind and creative thought.
D. Prolonged/Exacerbated Trauma
Taking on an institution is a long, lonely and stressful task. Very few people in your usual social network will share or understand your experience. APS agencies have all of the advantages in legal action - they have more financial resources, greater knowledge and expertise, greater influence, enjoyment of presumed legitimacy and legal authority, unlimited time, little individual responsibility, little organisational accountability, and little emotional investment. And when your APS agency and their legal representative do not comply with the Legal Services Directions 2005, you barely stand a chance (see the Legal Services Directions sub-page).
It is critical that you have enough stamina and resilience to see your action through until the end (this is not necessarily just the legal action, but any shift to the policy and public relations realm as well). Quitting mid-stream will only further embolden your APS agency and intensify the pattern of institutional repression. Thus, before considering going down the legal action path, you should ensure that your psychological/emotional injuries and related physical illnesses have stabilised (keeping in mind statutory time limits), be sure that you can cope with the stresses, seek assurances that you have the backing of your supporters in the long-run (you can seldom take on an institution by yourself), and have a sound exit strategy if things do not turn out as you anticipated.
When in the midst of a legal action, resist becoming obsessed with it and allowing your ego to be invested in it. A measure of detachment is beneficial for your well-being and your effectiveness. Your ability to be at your best is essential. Unfortunately, however, the strain and pressure make it more likely you will be at your worst. Regardless of your initial strength, the cumulative attacks are likely to wear you down. Handling the pressure can be more important than the strength of your evidence, quality of legal representation, persuasiveness of your case theory, shrewdness of your strategies or number of your supporters. (This is why it can be so important to have an advocate/legal representative be your mouthpiece as much as possible.)
Be aware that the APS legal representative’s role is to try to block every move that you make and, in this process, outrage management tactics and other forms of victimisation will come to the forefront. There can be no limit to the petty and shameful lengths an APS agency and their legal representatives can go to in defending against a legal action, and their unscrupulous tactics can even be more harmful than the initial mistreatment you complained about. Be prepared for the following conduct:
- bold lies to be told
- outrageous denials and cover-up of the truth
- alteration or withholding of documents
- concoctions of elaborate conspiracy theories
- mind-blowing spin-doctoring
- engagement in illogical excuse-making
- displays of double standards
- false/doubtful claims of ignorance
- unjustified overuse of the terms 'frivolous' and 'vexatious' to describe your claims
- obvious and subtle baiting/provocation
- obvious and subtle threats
- engagement in deliberate delay/frustration tactics
- invention of arbitrary rules to serve your APS agency's desires
- unfair ignoring/dismissal of the substance of your claims
- malicious discrediting of your reputation and work record
- displays of childish or strange behaviour
- poorly presented legal documents.
Focusing on the inadequacies of the target (and, let us face it, who does not have any inadequacies?) or manufacturing inadequacies of the target is the APS’s most popular smokescreen tactic to cloud the real issues at hand. APS agencies can be so unflinchingly committed to these methods that you may suffer perception shock and even come to believe the false story they concocted about you. This institutional victimisation will greatly add to the trauma that you will suffer - do not underestimate this.
Often the real psychological and emotional damage is not realised until after your legal matter is over, as you would have had to artificially delay the healing process by ‘keeping it together’ during the legal action and you would have been unwillingly forced to continually relive your negative experiences throughout the legal action. The longer the legal action is drawn out for, the longer it takes to heal. Professional counselling to cope with the additional stress during and after legal action may be an invaluable investment.
E. Worse Work Situation (If you still work at your APS Agency)
Sometimes your work situation may be improved by taking legal action (although, there are usually subtle forms of residual victimisation still in existence, such as ostracism and blockage of promotions or transfers). However, your work situation may become worse as a result of taking legal action, making it unbearable for you to stay. Generally, if you are seriously considering taking legal action against your APS agency, it is better to look for work elsewhere if it is possible.
F. Gagging Clauses (In Settlement Agreements)
You are likely to be exposed to a form of alternative dispute resolution (ADR) before going to court, such as mediation or conciliation. The purpose of ADR is not to seek 'the truth', but rather to help participants seek a resolution acceptable to both sides - and this is where settlement of your matter can usually occur.
There are some risks with ADR. Firstly, the mediator/conciliator may not be suitably qualified, fair, independent, impartial, non-judgemental, or have a genuine record of professionalism and integrity. If you do not have confidence in the mediator/conciliator, you may want to consider requesting an alternative mediator/conciliator (but be restrained in taking up this option). Secondly, you are likely to face a power imbalance, which is why you should usually have an advocate/legal representative present and have as many people on your side as there are on the other side. Thirdly, if you are stuck in a room for many hours under enormous pressure to reach an agreement, the risk of making unwise concessions increases as time goes on and your energy flags. Thus, try to limit the time for discussions or take breaks.
Settlement offers can be quite attractive, as it means you can pay off those mounting legal bills and finally put your claim to rest. However, beware from the outset of the gagging clause! Gagging clauses usually contain varying forms of confidentiality clauses and non-disparagement clauses (which prevents the expression, or incitement of others expressing, a low opinion, regardless of how truthful or fair the remark is) that form part of the deed of release (that is, the written terms of settlement). Despite the APS Values of openness, the fact that the Legal Services Directions 2005 states that an APS agency is only to impose confidentiality terms in a settlement where it is necessary to protect the whole of the Commonwealth's interests, and the fact that the Legal Services Directions 2005 does not contain a provision about non-disparagement clauses (see the Legal Services Directions sub-page), the fact is that your APS agency will insist on some kind of gagging clause: no clause, no settlement. The upshot of these clauses, if you agree to them, is that you will not obtain formal vindication (in fact, liability will probably be denied in a deed of release) and you will be unlikely to speak about your experience to help others facing the same APS perpetrators/APS agency. Additionally, your APS agency will likely require you to absolve individual APS perpetrators from any legal action you are entitled to take against them personally (which can be used as a bargaining tool to increase any compensation payout).
The usual course is that your APS agency will push for the broadest gagging clause that they can have you sign to. Generally, depending on how much your APS agency wants to settle or wants to buy your silence, you may have some room to bargain for a narrower gagging clause - so consider holding out until your APS agency has reached a censorship area that you feel you can live with. It best not to accept a gagging clause if it is not mutually applied. Even if it is mutual, be aware that it has recently been discovered that APS agencies are not in the practice of informing relevant APS employees of the existence of mutual non-disparagement clauses in settlement agreements, thereby making them exclusively in favour of the APS agency and its employees. This brings into question the legal validity of such clauses. Therefore, make sure you have written evidence of relevant APS employees being made aware of the existence of any gagging clause. If the employees refuse to be bound by it, seek written evidence of what your APS agency proposes to do about it.
If you do agree to a gagging clause, do not think that this will protect you from negative references. Spiteful referees will find ways to subtly paint you in a bad light in a way that cannot attract the 'disparaging' label. You can also subsequently be in a position that your spiteful supervisor will refuse to give you a reference outright - so make sure you incorporate into your Deed of Release your entitlement to positive oral and written references.
All in all, it is highly questionable that the APS should make such clauses mandatory when it is making payouts with public money. It is arguable that such gagging clauses should only be included if it is mutually wanted and agreed to, and is necessary. The subject of gagging clauses is discussed further at the Reform Issues page.
G. Losing
Whilst the courts/tribunals generally try to make what is fair to fit the law, your chances of winning can be an unknown quantity, no matter how strong your evidence and how shrewd your strategies are. An adverse ruling can be damaging to you in countless ways, embolden your APS perpetrator/APS agency and intensify the pattern of institutional repression. Even if you were to win, the win can be anti-climactic, as it would have likely followed overcoming many unnecessary hurdles put in front of you.
Throughout the process, view yourself as a 'consumer of justice' and regularly reassess the facts, your case theories, your strategies, your goals, your circumstances and your capabilities. Ask yourself these questions:
- Is it time to call it quits and accept your sunk costs?
- Is it time for a dramatic new initiative?
- Is the present course about right?
Such reflection is vital. This is because there are several common psychological factors that make people overestimate their chance of success, and to gamble when the odds are very bad. These factors are:
- most people are over-confident about their own abilities
- success is highly salient compared to failure
- people tend to throw good money after bad in an attempt to recoup lost money
- many people believe that after getting a string of heads when flipping a coin, tails is more likely when actually the odds are the same (or, in cases of appeal channels, the odds can be worse).
If you are as realistic as possible about your chances of success when considering whether to go down the legal path, you are more likely to prevent a course leading to an adverse outcome or starting on a path that you will inevitably have to quit part way through.
If your information about your chance of success in legal action is limited, the rule of thumb for roughly determining your chance of success is to estimate your chance of success if everything was fair and divide that by between 5 and 10 to get an estimate of your roughly probable chance of success.
15. Freedom of Information Applications (Classic APS Frustration Tactics)
The Freedom of Information Act 1982 is discussed at the Freedom of Information Law sub-page. The Freedom of Information Act 1982 provides a legally assertable right to data held by the Commonwealth Government (with various exemptions). You would normally want to utilise freedom of information laws when you want to collect information from your APS agency relating to you and your complaint of workplace mistreatment if you are concerned about:
Unfortunately, APS agencies are known to sometimes use frustration tactics when dealing with requests under the Freedom of Information Act 1982. Be aware of the following tactics:
- the processes undertaken;
- outcomes incorrectly reached; or
- inaccurate information held about you and your complaint which you want to correct (see the Privacy Law sub-page).
Unfortunately, APS agencies are known to sometimes use frustration tactics when dealing with requests under the Freedom of Information Act 1982. Be aware of the following tactics:
- Delays - APS agencies may try to respond to requests as close to the end of the statutory timeframes as possible or, where there are no statutory timeframes, APS agencies may try to deal with requests as slowly as possible.
- Obstruction - APS agencies may over-use exemptions to justify not releasing information or grossly exaggerate hours of work/costs involved in processing a request. Initial refusal of access or imposition of excessive charges may be decided by APS agencies in the hope that the appeals processes will not be pursued.
- Not applicant-blind - individuals who make requests who are also taking legal action against APS agencies may be treated differently to other applicants. An innovation worth considering by the Commonwealth would be to make requests genuinely applicant-blind so that only the APS employee who fields the request should know about the applicant's identity.
- Over-use of redaction - APS agencies can unjustifiably redact documents so severely that they become effectively useless to the reader.
- Lack of transparency - APS agencies may not provide clear and thorough reasons for refusal of access or imposition of charges.
- Deny existence or destroy documents - on rare occasions, APS agencies may deny the existence of documents or destroy them.
16. Writing to Members of Parliament
If your complaint is serious, you may want to consider writing a letter to your APS agency's Minister that clearly and concisely articulates your concerns and any bigger picture issues (with minimal use of emotional language and minimal grammatical errors). You may want to even consider naming individual APS perpetrators, as APS bureaucrats detest being named in a negative light in ministerial correspondence, particularly the more junior ones. It is even better if you can support your concerns by providing documentary evidence. Make sure that all of the points you make in your correspondence are accurate and persuasive, as APS officers who are delegated the task of drafting ministerial responses will usually fixate on the weakest points of your correspondence and ignore the stronger points (that is, if you receive a response at all). Ministers are usually supposed to reply within 6 weeks from the date of receipt of your correspondence.
Be aware that, by raising your concerns through this channel, there is a risk that you may be further victimised if you are still an employee of your APS agency. Also be aware that your letter to the Minister will likely be ignored or delegated back to your APS agency for a mundane or evasive response in the name of it being an 'employment issue'. Yet, the benefit of making the Minister aware of your concerns is that if the Minister receives a number of complaints of a similar nature over a defined period of time, then the Minister cannot deny awareness of a cultural and systemic problem in his or her agency. Furthermore, if a number of complaints specify the same APS perpetrators, then it is harder to claim ignorance about the perpetrators' behavioural histories. Since the occurrence of workplace bullying, harassment, victimisation and discrimination is ultimately an issue of accountability to the tax-paying public because of the significant negative effects on employees' productivity, the Minister arguably has an obligation to act on concerning complaints that he or she receives.
If you do not receive a response, or receive an inadequate response, from the Minister or your APS agency, you may want to also consider contacting a relevant opposition Member of Parliament who may be able to offer some form of assistance to you.
Be aware that, by raising your concerns through this channel, there is a risk that you may be further victimised if you are still an employee of your APS agency. Also be aware that your letter to the Minister will likely be ignored or delegated back to your APS agency for a mundane or evasive response in the name of it being an 'employment issue'. Yet, the benefit of making the Minister aware of your concerns is that if the Minister receives a number of complaints of a similar nature over a defined period of time, then the Minister cannot deny awareness of a cultural and systemic problem in his or her agency. Furthermore, if a number of complaints specify the same APS perpetrators, then it is harder to claim ignorance about the perpetrators' behavioural histories. Since the occurrence of workplace bullying, harassment, victimisation and discrimination is ultimately an issue of accountability to the tax-paying public because of the significant negative effects on employees' productivity, the Minister arguably has an obligation to act on concerning complaints that he or she receives.
If you do not receive a response, or receive an inadequate response, from the Minister or your APS agency, you may want to also consider contacting a relevant opposition Member of Parliament who may be able to offer some form of assistance to you.
17. Contacting Academics
The issue of workplace bullying, harassment, victimisation and discrimination is increasingly attracting the interest of academics. There may be an academic who is conducting a study on an area relating to your matter to whom you can provide information. You can usually find this out by just typing some key words into Google/Bing. The advantage of contacting an academic is that you can be sure that your information will be treated with confidence and sensitivity, you will be exposing a significant problem in the APS through a respected channel, and the end product will be a valuable contribution to academia and beyond. In addition, academics may be able to offer you some advice based on their academic expertise.
18. Contacting the Media and Other Publication Options
If you have a serious complaint, the mainstream media may seem like an appealing avenue. Yet, this avenue has its risks and should be approached with caution. APS agencies are notoriously hypersensitive about bad publicity and can go to desperate lengths to try to silence and discredit someone engaging in a damaging exposure. Matters to consider include:
If you are concerned that approaching the mainstream media is not the right option in your circumstances, but you still feel strongly about publicising your story, you can easily utilise non-mainstream media, which you generally have more control over. Examples include speaking on community radio, producing information pamphlets for public circulation, or creating a website that specifically targets your APS agency.
It is up to you if you want to remain anonymous. Anonymity reduces the risk of reprisals, but openness helps provide a focal point for sympathisers. Either way, you are more likely to feel empowered and reach a much wider audience through using these unofficial channels than through using official complaint-handling channels where the bigger picture of injustice is often lost in the separation and narrowing of issues, and the audience numbers are limited.
If you want to create an anonymous website or anonymously contribute to a website, ensure that you do the following at minimum:
Remember that the utilisation of traditional and modern media channels is not an ends in itself. Using these unofficial channels is a means to achieve exposure and garner support in order to increase your chances of succeeding in your goals. Thus, you will need to determine what exactly you want to achieve (such as increased success in legal action) and the best-suited form of media to achieve your goals (such as television, newspapers, radio, etcetera).
Whatever path you choose, try to make sure you are complying with all laws and, if you are still an APS employee, try to make sure you are complying with APS policies (it is always better to try to claim the higher moral ground).
If you are still an APS employee, you should be aware of the recent censorship policies that the Australian Public Service Commission has produced (see the PDF document below).
- whether your story has the requisite level of drama
- whether the timing is right (for example, when the Opposition Party is looking for leverage or scandal to use against your APS agency's Minister)
- whether you have enough information and evidence at the time
- finding a journalist who has a record of writing favourably about the issues you want to raise (journalists find it flattering when they have been singled out)
- finding a journalist who is sympathetic and competent
- presenting your story in a way that will achieve the greatest effect (it is best to initially present journalists with a one page summary due to their time constraints)
- contacting a journalist anonymously or under a pseudonym (although be aware that journalists usually prefer a face to a story and want to get to know you to make sure you are credible)
- assessing the risk of further victimisation for going to the media if you are still employed with your APS agency
- assessing the risk of detriment to future job prospects for going to the media
- if attempting to engage in settlement negotiations, assessing whether media publicity may mean that your APS agency will become entrenched in its position and refuse to work towards settlement
- assessing the risk of possible publicised backlash you could receive from your APS agency for going to the media (remembering that APS agencies can employ dirty tactics when desperate and the 'highest ethical standard' value under the Public Service Act 1999 is merely for public consumption, not for actual compliance, at times of negative publicity).
If you are concerned that approaching the mainstream media is not the right option in your circumstances, but you still feel strongly about publicising your story, you can easily utilise non-mainstream media, which you generally have more control over. Examples include speaking on community radio, producing information pamphlets for public circulation, or creating a website that specifically targets your APS agency.
It is up to you if you want to remain anonymous. Anonymity reduces the risk of reprisals, but openness helps provide a focal point for sympathisers. Either way, you are more likely to feel empowered and reach a much wider audience through using these unofficial channels than through using official complaint-handling channels where the bigger picture of injustice is often lost in the separation and narrowing of issues, and the audience numbers are limited.
If you want to create an anonymous website or anonymously contribute to a website, ensure that you do the following at minimum:
- do not use a work computer
- download and install the Tor bundle
- use Tor and Firefox to contribute to a website
- do not visit any other website connected to you (such as your webmail) while you are engaged in your anonymous contribution
- do not state anything that can only come from you or state anything that could identify you
- do not tell anyone about your contribution
- log out of Tor and Firefox when you have finished your contribution.
Remember that the utilisation of traditional and modern media channels is not an ends in itself. Using these unofficial channels is a means to achieve exposure and garner support in order to increase your chances of succeeding in your goals. Thus, you will need to determine what exactly you want to achieve (such as increased success in legal action) and the best-suited form of media to achieve your goals (such as television, newspapers, radio, etcetera).
Whatever path you choose, try to make sure you are complying with all laws and, if you are still an APS employee, try to make sure you are complying with APS policies (it is always better to try to claim the higher moral ground).
If you are still an APS employee, you should be aware of the recent censorship policies that the Australian Public Service Commission has produced (see the PDF document below).
apsc_circular_2012-1.pdf | |
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19. Threats of Defamation Lawsuits (Calling their Bluff)
On some occasions, targets who have voiced their dissent are threatened with defamation actions by their perpetrators in order to intimidate and discourage targets from continuing to speak out the truth. If this happens to you, then you should consider calling the bluff and publicising the threat in a censorship context.
Threats of defamation actions are more frequent than actions themselves. Defamation actions are expensive, time-consuming and difficult to win for the person bringing the action. If a defamation action is successful, the compensation a court orders would usually be minimal (unless the defamed person holds notoriety). In Australia, truth and honest opinion are defences to defamation claims. Usually, as long as there is no persuasive evidence of malice on your part, and what you state is the truth or honest opinion, an action is unlikely to succeed.
Furthermore, defamation actions are not very good at protecting reputations, as it enables the alleged defamatory statements to be repeated with impunity in a public courtroom setting and can be officially recorded in case reports, thereby increasing the attention to the alleged defamatory statements and putting the statements into a more permanent record.
Professor Brian Martin of the University of Wollongong has written some insightful articles about defamation law and free speech at his website.
Threats of defamation actions are more frequent than actions themselves. Defamation actions are expensive, time-consuming and difficult to win for the person bringing the action. If a defamation action is successful, the compensation a court orders would usually be minimal (unless the defamed person holds notoriety). In Australia, truth and honest opinion are defences to defamation claims. Usually, as long as there is no persuasive evidence of malice on your part, and what you state is the truth or honest opinion, an action is unlikely to succeed.
Furthermore, defamation actions are not very good at protecting reputations, as it enables the alleged defamatory statements to be repeated with impunity in a public courtroom setting and can be officially recorded in case reports, thereby increasing the attention to the alleged defamatory statements and putting the statements into a more permanent record.
Professor Brian Martin of the University of Wollongong has written some insightful articles about defamation law and free speech at his website.
20. Staying Sane in an Insane Situation
Being a target of bullying, harassment, victimisation and discrimination can be hugely painful and costly. It can lead to a drop in self-esteem, feelings of powerlessness, distrust of others, impulsiveness, diminished concentration, clouded judgement, despondency, mood swings, emotional injuries, psychological injuries, physical illness, substance abuse and relationship breakdowns. In serious cases, it can bring down years of investment in education and career development. Unfortunately, because most people need to work in order for themselves and their families to survive, targets have to begrudgingly force themselves to return to work each day knowing that their dignity and safety will be violated again and again. When targets come home from work at night, they cannot help but think about the mistreatment they suffered that day and anticipate the indignity they will face the next day. All that targets wanted was to go to work to do a good job and to be left in peace. Unlike public harassment, there is no escaping workplace perpetrators!
When targets finally pluck up the courage to speak out, they can find themselves facing shocking retaliation from their perpetrators, colleagues or APS agency. Targets may be told that they are being overly sensitive, even though the reasonable person would most likely react in the exact same way or worse. The focus can wrongly be shifted on to the targets needing resilience training, rather than the perpetrators needing positive behaviour training. Such a reaction becomes too much for targets to bear. Indeed, targets find themselves in insane situations!
The secret to preserving your sanity when you are a target lies in how well you understand the insanity that is going on around you. This website page goes some way in helping you understand the situation you are in. When you pay close attention, keep yourself informed and take time to reflect, you will see that the situation you are in, like all other human behaviours, follow predictable patterns. The patterns are irrational and they can often operate at cross purposes to what is really in the best interests of individuals and your APS agency. Nevertheless, they can still make sense. If you understand the patterns, you can reduce your own negative internal responses and potentially damaging actions, and you may even be able to make the situation better.
More often than not, our reactions to emotional situations are automatic. By the time we are adults, we have developed a fully programmed autopilot that consists of habitual ways of perceiving and acting that either result from genetic dispositions or from learnt experience. Most of the time an autopilot is an asset, especially for doing familiar and repetitious tasks. However, an autopilot can be a liability in stressful situations as it can make you engage in damaging thought patterns and actions, such as denial, self-blame, ego investment and rage. Everyone is vulnerable to their autopilot.
The rule of thumb that will keep you from making mistakes in an emotional situation is to never go with your most immediate/instinctive response. Instead, you need to override your autopilot with an informed and thought-out response. When you recognise emotional arousal within you, try to extricate yourself from the situation that is causing the arousal, take time to think, talk with people whose judgment you trust, and work out what you want to achieve and a realistic way of achieving it. Of course, this is all easier said than done, but at least you are more likely to have fewer regrets if you try.
One of the greatest weaknesses that targets (who decide to speak out) suffer from is the ‘just world syndrome’ - the deep need to believe that the world is just. In a negative-norm workplace, such as many APS agencies, this belief is nearly always self-destructive and can cause endless pain. In such circumstances, in order to stay sane, it is better to:
To minimise angst, you should only expect the following benefits from the use of official channels:
Taking steps to maintain your physical health and ensure a balanced lifestyle will also help you in staying sane. These steps include:
Keeping all of this up may seem like a hugely unfair burden when you never asked to be mistreated in the first place. However, when people are affected by strong emotions, it is hard for them to appear 'normal' and this can go towards the issue of credibility. Essentially, unlike your perpetrators, you will need to be whiter than white. Thus, it is important to sincerely try to artificially control your emotions so that your actions and decisions do not provide any ammunition to your opponents, and your supporters are willing to continue to stand by you.
There can also be some long-term personal benefits to taking up assertiveness training, conflict resolution training and resilience training, as well as reading books on organisational theory and psychology. Such exercises will further assist you in gaining strategies to deal with different personality types, understand the politics in workplaces and to focus on pragmatic ways of thinking rather than idealistic ways of thinking. Some good books to start with are:
In the end, whatever choice you make about your experience of workplace bullying, harassment, victimisation or discrimination in the APS, you are likely to be headed down a treacherous path… try to ensure your emotional and professional survival along the way!
When targets finally pluck up the courage to speak out, they can find themselves facing shocking retaliation from their perpetrators, colleagues or APS agency. Targets may be told that they are being overly sensitive, even though the reasonable person would most likely react in the exact same way or worse. The focus can wrongly be shifted on to the targets needing resilience training, rather than the perpetrators needing positive behaviour training. Such a reaction becomes too much for targets to bear. Indeed, targets find themselves in insane situations!
The secret to preserving your sanity when you are a target lies in how well you understand the insanity that is going on around you. This website page goes some way in helping you understand the situation you are in. When you pay close attention, keep yourself informed and take time to reflect, you will see that the situation you are in, like all other human behaviours, follow predictable patterns. The patterns are irrational and they can often operate at cross purposes to what is really in the best interests of individuals and your APS agency. Nevertheless, they can still make sense. If you understand the patterns, you can reduce your own negative internal responses and potentially damaging actions, and you may even be able to make the situation better.
More often than not, our reactions to emotional situations are automatic. By the time we are adults, we have developed a fully programmed autopilot that consists of habitual ways of perceiving and acting that either result from genetic dispositions or from learnt experience. Most of the time an autopilot is an asset, especially for doing familiar and repetitious tasks. However, an autopilot can be a liability in stressful situations as it can make you engage in damaging thought patterns and actions, such as denial, self-blame, ego investment and rage. Everyone is vulnerable to their autopilot.
The rule of thumb that will keep you from making mistakes in an emotional situation is to never go with your most immediate/instinctive response. Instead, you need to override your autopilot with an informed and thought-out response. When you recognise emotional arousal within you, try to extricate yourself from the situation that is causing the arousal, take time to think, talk with people whose judgment you trust, and work out what you want to achieve and a realistic way of achieving it. Of course, this is all easier said than done, but at least you are more likely to have fewer regrets if you try.
One of the greatest weaknesses that targets (who decide to speak out) suffer from is the ‘just world syndrome’ - the deep need to believe that the world is just. In a negative-norm workplace, such as many APS agencies, this belief is nearly always self-destructive and can cause endless pain. In such circumstances, in order to stay sane, it is better to:
- forget the idea that APS employees and APS agencies are supposed to be complying with the APS Values, APS Code of Conduct, other APS policies and procedures, and laws (remembering that these can often be merely for public consumption rather than actual compliance); and
- forget justice in its conventional sense, particularly when utilising official channels.
To minimise angst, you should only expect the following benefits from the use of official channels:
- exposing injustice and unfairness that your perpetrator or APS agency are responsible for (in the form of an official paper trail)
- the possibility of collecting valuable information (such as evidence of cover-up)
- demonstrating active resistance to mistreatment, thereby ensuring that your perpetrator or APS agency do not get a free ride and may decide to change their behaviour towards future targets based on an effort/benefit ratio
- the possible opportunity for negotiation and settlement of your matter (although be aware that the APS has a reputation, particularly amongst some plaintiff employment lawyers, for generally being unethical or bloody-minded in settlement negotiations)
- the feeling of self-respect for no longer putting up with mistreatment.
Taking steps to maintain your physical health and ensure a balanced lifestyle will also help you in staying sane. These steps include:
- exercise regularly (this reduces bodily tension and has a psychologically calming effect)
- eat healthily, regularly and in moderation (a wholesome diet can make a difference in helping resist stress)
- avoid the use of drugs, such as alcohol and smoking (they can aggravate health problems)
- try to go to bed at the same time each night and if you cannot sleep then get up and do something that is unrelated to what is worrying you (lack of sleep on its own is not hugely damaging and most tasks can be carried out with full competence by sleep-deprived people)
- recognise the importance of personal relationships and cultivate support networks (try to not strain the relationships around you by constantly dwelling on the injustice of your experience)
- engage in social activities
- have a hobby.
Keeping all of this up may seem like a hugely unfair burden when you never asked to be mistreated in the first place. However, when people are affected by strong emotions, it is hard for them to appear 'normal' and this can go towards the issue of credibility. Essentially, unlike your perpetrators, you will need to be whiter than white. Thus, it is important to sincerely try to artificially control your emotions so that your actions and decisions do not provide any ammunition to your opponents, and your supporters are willing to continue to stand by you.
There can also be some long-term personal benefits to taking up assertiveness training, conflict resolution training and resilience training, as well as reading books on organisational theory and psychology. Such exercises will further assist you in gaining strategies to deal with different personality types, understand the politics in workplaces and to focus on pragmatic ways of thinking rather than idealistic ways of thinking. Some good books to start with are:
- 'The Whistleblower's Handbook: How to be an Effective Resister' by Professor Brian Martin
- 'Am I the Only Sane One Working Here?' by Dr Albert J Bernstein
- 'The Bully at Work' by Dr Gary Namie and Dr Ruth Namie
- 'The No Asshole Rule' by Dr Robert J Sutton
- 'The Whistleblower's Handbook: A Step-By-Step Guide to Doing What's Right and Protecting Yourself' by Stephen Martin Kohn.
In the end, whatever choice you make about your experience of workplace bullying, harassment, victimisation or discrimination in the APS, you are likely to be headed down a treacherous path… try to ensure your emotional and professional survival along the way!