Australia: Am I really a bully in the workplace?

Key Points:

Sound workplace practices and policies that clearly articulate expectations of employees in their workplace interactions will minimise the risk of workplace gossip becoming a bullying claim.

With the rise in bullying claims and the new anti-bullying jurisdiction of the Fair Work Commission, more than ever managers and supervisors must answer that age-old question "Am I really a bully?".

In this article we set out some of the behaviours that have led to employees bringing anti-bullying applications in the Commission so you can answer that question more confidently.

What is "bullying" in the workplace?

Bullying is difficult to define and different jurisdictions define it in slightly different ways. The Australian Human Rights Commission considers workplace bullying to be "verbal, physical, social or psychological abuse by your employer (or manager), another person or group of people at work".

For the purposes of an application to the Fair Work Commission's bullying jurisdiction the Fair Work Act 2009 says a worker is bullied if, while at work, an individual, or group of individuals, repeatedly behaves unreasonably towards that worker, and that behaviour creates a risk to the worker's health and safety. However, bullying does not include reasonable management action taken in a reasonable manner.

When might I be a bully?

Examples of bullying behaviour include:

  • intimidation and coercion;
  • threats;
  • humiliation;
  • shouting;
  • sarcasm;
  • singling-out or ostracism;
  • innuendo;
  • rumour-mongering;
  • disrespect and mocking; and
  • discrimination1.

Rude or belittling comments

In the decision of Hammon [2015] FWC 5565, an employee accused his colleagues of calling him a "lackey" behind his back and for putting up his picture on a "look-alike" board in the office next to a picture of a dwarf. The Commission found that although the employee was subject to unreasonable behaviour in the workplace, it was not "repeated" and therefore did not satisfy the criteria in section 789FD of the Fair Work Act.

Organisational change part of management action

In AB [2015] FWC 3353, an employee claimed that she was subject to unreasonable performance management when the Salvation Army underwent a period of organisational change, resulting in her having to deal with more difficult clients than she did previously. The Commission considered that incorporating her resistance to the change as part of her performance assessment was reasonable management action, carried out in a reasonable manner.

Threats of violence and rumour-mongering

In Page [2015] FWC 5955, an employee of a soap stall at Fremantle markets alleged that a cleaner threatened to kill her after he had to clean up her soap crumbs, and that a fellow stallholder gave her "hostile looks", told her to "get f&*%ed" and gossiped with other stall holders about the employee. The Commission dismissed the application on the basis that the evidence was disputed by the stall holder and that because each party to the application gave their respective evidence with conviction, the relevant test under section 789FF of the Fair Work Act could not be made out.

"Defriending" on social media

More recently in the decision of Roberts [2015] FWC 6556, the Commission found that an employee who worked at a real estate agency was bullied by her colleague, which resulted in the employee suffering from depression and anxiety.

The Commission accepted the employee's assertion that her colleague ignored her, deliberately refused to perform administrative tasks for her, referred the employee's clients to a debt collector without the employee's knowledge, and that this amounted to bullying. Further, the colleague was also found to have called the employee a "naughty little school girl running to the teacher" when the employee raised the issues with the director of the real estate agency (the director also made inappropriate and suggestive comments about the employee having a same-sex relationship with a client, but this occurred once and did not meet the test of "repeated" behaviour). The colleague then immediately "defriended" the employee on Facebook.

Deputy President Wells found that the colleague's behaviour was "provocative and disobliging" and that the real estate agency's rushed implementation of a bullying policy did not reduce the risk to the employee's health and safety.

Bullying does not have to be face to face

The anti-bullying jurisdiction affords the FWC discretion to decide exactly what kind of behaviour constitutes bullying. Generally, it has been content to determine whether the behaviour alleged in a case could be bullying. Commissioner Wilson in YH v Centre and Others [2014] FWC 8905 said "Plainly, in concept, some interpersonal conflicts or workplace gossip can be bullying behaviours."

The recent decision of Page, however, goes further, and included speculation about what sorts of behaviour may satisfy the criteria under section 789FD.

Commissioner Cloghan said that "spreading misinformation or ill-will against others [is] bullying" and further, that "scurrilous denigration of a worker in the workplace would certainly fall within the boundary of bullying".

Stop bullying promptly

If a person believes you have engaged in any of the behaviours above, they may make a formal complaint internally with HR, or could apply to the Commission for an order to stop the behaviour from continuing. The Commission will consider the application against the criteria in the Fair Work Act and decide whether the person has been bullied and if orders to stop the bullying are appropriate in the circumstances.

We know, however, that most of the applications are not making it to hearing and are being dealt with either through a conference or at a preliminary stage. Either way, a bullying complaint will be disruptive, distressing, and costly.

What may seem as harmless chat in the tea room or kitchen could result in adverse consequences in relation to a person's employment. Sound workplace practices and policies that clearly articulate expectations of employees in their workplace interactions will minimise the risk of workplace gossip becoming something more and landing employees in front of the Commission.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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