Workplace Bullying in Australia

Workplace bullying is a risk to employee health and safety and can have detrimental psychosocial and psychological effects on those who experience it in the workplace. In Australia, employment law prohibits workplace bullying. This article looks at the prohibition against bullying in the Fair Work Act 2009 and explains the procedure for making bullying complaints to the Fair Work Commission.

What is workplace bullying?

Workplace bullying can occur between colleagues, between managers and workers (and vice versa) and between any other people in the workplace, from clients to patients and members of the public. Bullying is any unreasonable, repeated behaviour targeted at a worker or group of workers that creates a health and safety risk. It can be difficult to identify whether a certain behaviour is actually “unreasonable”. Certainly, it encompasses any behaviour that humiliates, victimises, intimidates or threatens a worker. But it extends to include any conduct that a reasonable person, in the same circumstances, would find unreasonable. It is therefore contingent on the particular circumstances at the time.

The law makes it clear that a single, unreasonable action is not considered bullying. There is a requirement for the conduct to be “repeated” in that it is persistent, although this can refer to different unreasonable behaviours experienced over time. The following examples constitute workplace bullying if they are unreasonable in the circumstances, repeated and create a health and safety risk:

• insulting, offensive or abusive comments or language
• unjustified complaints and criticisms
• deliberate exclusion from workplace activities
• withholding information that is essential for effective work
• denying access to resources, information, supervision and consultation to the worker’s detriment
• setting unreasonable deadlines or constantly shifting deadlines
• setting tasks that are unreasonably outside of a person’s skill level (whether above or below their abilities)
• spreading malicious rumours or lies about a worker
• deliberately inconveniencing a worker or workers by changing work rosters and leave bookings

Under the Fair Work Act (FWA), workplace bullying is conduct that occurs while “at work”. Case law, such as the judgment in Bowker v DP World Melbourne Limited [2014] have clarified the question of when a worker is at work. In this case, the Full Bench concluded that workplace bullying conduct can occur at any time that the worker is “performing work”. Therefore, a worker can be at work whenever they are working, regardless of the time of day or location.

What is not workplace bullying?

Not all behaviour that an employee finds stressful or uncomfortable is workplace bullying. Managers and supervisors are authorised to give reasonable direction to workers and provide fair and reasonable feedback on an employee’s performance. These actions do not constitute workplace bullying unless it is delivered in such a way as to be unreasonable or threatening. While a worker may feel discomfort or take offence, the following actions are not workplace bullying as long as they are reasonable in the circumstances:

• overlooking a worker for promotion
• transferring a worker to another position for operational reasons
• performance managing a worker
• warning a worker about their unreasonable behaviour
• taking justifiable disciplinary action against a worker

Reporting workplace bullying

It is not unusual for an employee to hesitate to report bullying at work. Employees sometimes believe that bullying behaviour is acceptable workplace culture, or think that they will be subject to adverse action if they report the abuse. The employee might not be aware of the seriousness of bullying or the effects it can have on their wellbeing. Anyone who is experiencing bullying at work should seek legal advice about their options under employment law.

Workers who are currently employed who reasonably believe that they are being bullied at work can apply to the Fair Work Commission for an order to stop bullying. The worker must have an actual and genuine belief that they are being bullied and have either proof of the bullying or be able to present a rational basis for the belief. If the Commission is satisfied that the worker was bullied and there is a risk that the behaviour will continue, it can make any order it considers fitting to prevent risk of further harm. These orders are not intended to punish the perpetrators or provide the victim with financial compensation (although the parties may come to a separate compensation settlement).

Workplace bullying does present a foreseeable risk to employee health and safety. This means that if a worker experiences harm because of the bullying, and the employer was negligent in failing to prevent it, then the worker may be entitled to compensation under the common law. Companies are also liable to face prosecution if they negligently fail to provide a safe work environment.

Case study

The Ballarat Magistrates Court recently imposed a $10,000 fine and costs on an air conditioning company who pled guilty to failing to maintain a safe work environment. No conviction was recorded against the company. In this case, a first-year apprentice was subject to prolonged bullying from colleagues at work at Celsius Ballarat Pty Ltd. He was afraid to inform the company directors, in fear of retribution, but contacted the police when his colleagues hung him from a noose hanging from a roof strut and poked him in the genitals with a drill.

The WorkSafe investigation revealed that the apprentice was subjected to sexually harassing and taunting comments, and physically assaulted on numerous occasions, including his colleagues spitting on him, placing him in headlocks, hits to the groin and shooting at him with a nail gun. WorkSafe determined that the employer had inadequate policies and procedures for the prevention and management of inappropriate behaviours, no formal complaint process, or risk control measures.

The employment law team at Go To Court Lawyers can help if you are experiencing workplace bullying in Australia. Please get in touch for any advice on your legal options on 1300 636 846.