Workplace Bullying (ACT)
Updated on Oct 23, 2023 • 6 min read • 327 views • Copy Link
Workplace Bullying (ACT)
In the ACT, there are laws prohibiting workplace bullying at both territory and federal level. A person who experiences workplace bullying in the ACT may have recourse to complaints mechanisms either through the Fair Work Commission, through WorkSafe ACT, or both. Workplace bullying may also amount to unlawful discrimination or to a criminal offence. This page deals with workplace bullying in the ACT.
What is workplace bullying?
Workplace bullying is any persistent verbal, psychological, physical, or social abuse by either an employer or a worker, against another person or group of people in a workplace.
Workplace bullying may include any unwelcome behaviour that is offensive, insulting, degrading, humiliating, intimidating, frightening or threatening. It may include subtle behaviours such as deliberately leaving a person out of social activities, setting timelines or deadlines that are very hard to achieve, or refusing a person’s leave application unreasonably.
Workplace bullying may also include behaviour that amounts to a criminal offence such as causing damage to property, or physical or sexual assaults, when this conduct occurs in the workplace or at a work-related function.
Vicarious liability for workplace bullying
If an employee or the agent of an employer engages in bullying or harassment in the workplace, the employer may be held vicariously liable for that conduct. This means that the employer is treated as through it had engaged in the behaviour itself on the basis that it was in a position of control and authority over the activities of its employee.
An employer will not be held vicariously liable if they can demonstrate that they took all reasonable steps to prevent or stop the bullying behaviour.
Workplace bullying and the Fair Work Act
All employees in the ACT are covered by the anti-bullying provisions contained in Part 6-4B of the Fair Work Act 2009. The Fair Work Act defines bullying as repeated behaviour towards an individual which poses a risk to his or her health and safety.
The Fair Work Act entitles workers to bring a complaint about workplace bullying to the Fair Work Commission. An application to the Commission can be made by any worker, including volunteers, subcontractors and contractors.
If the Commission finds that the worker has been bullied at work and that there is a risk that the bullying will continue, it may make any order it considers appropriate to prevent the worker from being bullied at work.
The Fair Work Commission does not, however, have jurisdiction to make orders for compensation for loss or damage suffered by a worker who has been bullied. However, lodging a complaint with the Fair Work Commission does not stop a worker from pursuing other avenues of redress.
ACT work health & safety laws
Under the Work Health and Safety Act 2011, an employer must take reasonable steps to eliminate or minimise any risks to the health and safety of their workers.
One of the main considerations in deciding what are ‘reasonable steps’ in any given situation is the seriousness of the risk to the worker. Bullying and harassment in the workplace can pose serious risks to an employee’s safety and health, and therefore employers must do everything they reasonably can to prevent or stop workplace and/or to minimise its effects.
Failure to address workplace bullying could amount to a breach of the Act and the employer could, in some circumstances, be liable to prosecution.
Workers also have a duty under the Work Health and Safety Act 2011 not to expose themselves or other people to work safety risks.
For ACT workers who are in the public service, there are standards of conduct set out in section 9 of the Public Sector Management Act 1994. These standards of conduct include a duty not to harass, bully or intimidate anyone when acting in connection with their job. There is also a responsibility on all managers in the public service to provide a safe working environment, and employees have to comply with all other workplace laws.
Workplace injury claims
If an ACT employer does not take reasonable steps to prevent workplace bullying and harassment from occurring, then a complaint can be made to WorkSafe ACT.
If an employee has suffered an injury (physical or psychological) because of bullying they may be also able to lodge a claim under the Workers Compensation Act 1951.
Workers employed by the Commonwealth may also be entitled to claim for workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988.
Workplace bullying and discrimination
Bullying and harassment by an employer may also amount to discriminatory conduct if it means that a person is refused a job or loses a job, is denied a training opportunity, is denied a promotion or is given less favourable working conditions or terms of employment on the basis of a protected attribute such as race, sex, age and disability.
If an employee believes that they have been the victim of bullying that amounted to discrimination, they should first try to resolve the situation by speaking to the complaints (grievances) officer at the workplace, to the head of the organisation or to its human resources department.
Employees are also entitled to ask their trade union to help.
If the problem cannot be resolved, then a complaint can be lodged with either the federal Australian Human Rights Commission or the ACT Human Rights and Discrimination Commissioner.
Civil & criminal remedies
An employee who experiences workplace bullying may also have a claim for breach of contract depending on the wording of their employment contract and the employer’s policies. For instance, if the employer has a policy setting out how it will address workplace harassment and bullying and doesn’t follow the procedures under that policy, then an employee who suffers as a result may have a claim.
Breach of contract claims must be commenced within six years of the breach.
Some forms of bullying may also amount to criminal offences under the Crimes Act 1900. This includes bullying that involves violence or any sort of unwanted touching, or is threatening or harassing.
This sort of behaviour can be reported to the police so that they can consider whether the matter should be investigated and the perpetrator charged.
A person who is the victim of bullying that involves violence or threats of violence may also want to consider taking out a Personal Protection Order under the Domestic Violence and Protection Orders Act 2008 for protection against further bullying.
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