Workplace bullying in NSW is any physical, verbal, social or psychological abuse by an employer, or any other person or group of people at work.
Workplace bullying can occur in any workplace, from offices to shops, restaurants, workshops, community groups and government offices. Workplace bullying can happen to full-time, casual and permanent employees including apprentices, volunteers and work experience.
An employee may have an action against their employer for breach of an employment contract or negligence, depending on the circumstances of the bullying.
What is bullying?
For those workers in New South Wales who are covered by the Fair Work Act 2009, the Fair Work Commission has powers to make orders to stop bullying in some instances. These orders are designed to stop ongoing bullying. An application can be made by a ‘worker’, which includes all employees no matter what their position in the company is as well as volunteers, contractors and subcontractors.
Making a complaint to the Fair Work Commission does not prevent a worker from also pursuing any of the other legal avenues that are available.
Orders to stop bullying
Bullying is unacceptable because it poses a threat to a worker’s health (including mental health) and safety.
The main legislation regarding workplace bullying in NSW is the Work Health and Safety Act 2011. Under that legislation an employer or business has a duty of care to ensure that workers are not exposed to a risk to their health and safety. That responsibility extends to responsibility for the actions of people they employ and unless an employer can show that it did everything it reasonably could to stop the bullying and harassment, they could be held liable for the actions of the employee.
Health and safety laws regarding workplace bullying in NSW
Some more severe forms of bullying may be a criminal offence under the Crimes Act 1900.
This may involve bullying using violence, including any sort of unwanted touching, or bullying that is threatening or harassing. This behaviour can be reported to the police for them to consider if charges should be laid.
The victim may also consider taking out an Apprehended Personal Violence Order for protection against the further bullying.
If bullying or harassment by an employer leads to a person being refused a job, dismissed from a job, denied promotion or training opportunities, or subjected to less favourable working conditions or terms of employment then an employee should first try to solve the problem internally. This can be by speaking to the complaints (grievance) officer, to a supervisor or the head of the organisation, or to the human resources department. They may wish to ask a trade union to help.
If the actions involve the termination of employment, then it may be possible to bring an unfair dismissal claim to the Fair Work Commission (or the state industrial relations commission for employees of state and local government). They will consider if the termination was in all of the circumstances harsh, unjust, or unreasonable, and whether workplace bullying was involved.
An employee must lodge a complaint of unfair dismissal within 21 days of the date of termination of employment.
Actions against the Employer
Some forms of bullying and harassment may also involve discriminatory conduct.
Workers should lodge a grievance with their employer first. If the problem is not fixed, then a complaint can be lodged with the federal Australian Human Rights Commission or the NSW Anti-Discrimination Board.
Complaints regarding discrimination must be lodged with either the Australian Human Rights Commission or the NSW Anti-Discrimination Board within 12 months of the alleged discriminatory conduct occurring.
Discrimination and bullying
The law says that employers must take action to protect the health, welfare and safety of their employees. As workplace bullying may harm the health, safety and welfare of employees, employers must ensure that workplace bullying is prevented or stopped.
If an employer does not prevent it then a complaint can be made to WorkCover. If an employee has suffered an injury (physical or psychological) because of the bullying they may be eligible to lodge a claim for a workplace injury under the Workers Compensation Act 1987.
Worker’s compensation for bullying
The Fair Work Act 2009 describes workplace bullying as repeated and unreasonable behaviour towards a worker which poses a risk to that worker’s safety and health at work.
It can be subtle such as deliberately leaving a person out of normal workplace activities, setting timelines or deadlines that are very difficult to achieve or constantly changing deadlines, and refusing to allow a person to take leave even though they are entitled to it.
It can include behaviour that is unpleasant, such as yelling, swearing, making fun of someone, gossiping, and spreading hurtful rumours. It can also extend to more serious criminal behaviour such as damage to property or physical, sexual or indecent assault.
Bullying can be directed to one or more people.