Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.
All employees and employers in the Northern Territory are covered by the National Fair Work system, which aims (amongst other things) to protect workers from harassment and bullying.
Workplace bullying is persistent or repeated unwelcome behaviour including treating an employee or employees in a way which harms, degrades, intimidates, offends or insults them.
What constitutes bullying?
Bullying can include:
- unreasonable work expectations
- threats of physical violence or actual violence
- the spreading of hurtful rumours
- displaying offensive materials, and
- aggressive, humiliating or intimidating behaviour.
It can be directed at any employee, including contractors or subcontractors, apprentices and trainees, work experience participants and volunteers, and outworkers.
Harassment or bullying on the basis of race, sex or another attribute may also be a breach of the anti-discrimination provisions of the Northern Territory and Commonwealth legislation.
Lodging a grievance
An employer can be held liable if an employee or an agent of the employer commits an unlawful act during the course of his or her employment, unless the employer can demonstrate that all reasonable steps were taken to prevent the employee or agent committing the unlawful act. Lack of awareness of this responsibility is not a defence.
Many employers will therefore have policies in place regarding equal opportunity and bullying and harassment, as well as grievance resolution procedures setting out how employees can make complaints and how those complaints will be investigated.
If bullying or harassment is happening at work, the first step is to report it to a supervisor or manager, a workplace health and safety representative, the human resources department or the Union.
Applications for an order to cease bullying
If lodging a grievance is not successful, the next step would be to take action at the Fair Work Commission (the Commission) to stop the bullying. If the Fair Work Commission finds that a person or persons have been bullied and there is a risk it will continue, it can make an order to prevent future bullying at work in the future.
All workers in the Northern Territory who are experiencing bullying or harassment may bring an application to the Fair Work Commission for an order to prevent the bullying from continuing. Volunteers, contractors, outworkers, apprentices and trainees are also covered by the anti-bullying provisions in Part 6-4B.
The Fair Work Commission does not have the power to make any orders for compensation.
Northern Territory Legislation
Under the Work Health and Safety Act, employers must take all reasonably practicable steps to remove or minimise any risks to the health and safety of their workers. Employers who fail to do so could be in breach of the Act and could, in some circumstances, be open to prosecution. Workers also have duties under the Work Health and Safety Act, including a duty not to expose anyone to work safety risks. Bullying or harassment could be considered a breach by the perpetrator of a worker’s duty under the Act and that worker could be punished under the Act.
Workplace harassment may also be discrimination under the Northern Territory Anti-Discrimination Act. Discrimination is defined under that Act to mean any exclusion, distinction or preference that effects equality of opportunity or treatment in employment on the basis of race, nationality, colour, religion, political opinion, social origin, age, impairment, medical or criminal record, sex, marital status, sexual preferences, trade union activity or mental, intellectual, psychiatric or physical disability.
A complaint of discrimination can be made to the Northern Territory Anti-Discrimination Commission, and should be made within 6 months of the discrimination taking place.
Other criminal and civil remedies
In some circumstances harassment may constitute a criminal offence. Examples of these would be:
- incidents involving physical or indecent assault
- sending obscene material through the mail
- stalking, and
- making nuisance phone calls or sending offensive emails.
These matters can be reported to the police for them to consider charges under the Criminal Code. An application for an apprehended violence order can be made under the Personal Violence Restraining Orders Act.
An employee could have a claim for breach of contract. This would depend on the wording of their contract of employment and their employers polices. If, for instance, the employer has a policy that sets out how workplace bullying and harassment will be addressed and that policy is an obligation under the contract of employment there may be a claim.
There are time limits on lodging civil claims; for breach of contract this is 6 years.
