Workplace bullying is still one of the hot topics in industrials
laws, often being the type of claim levelled during performance
reviews or by workers who are disgruntled in their jobs. However,
valid complaints of workplace bullying need to be taken on board
and dealt with seriously to avoid not only breaches of industrial
laws but work health and safety laws.
Lessons for employers
Be careful to ensure that reasonable management action is
carried out in a reasonable manner.
Treat bullying complaints seriously, but not automatically
assume it is a lay down misere.
Seek advice early to determine whether a complaint should be
investigated formally or dealt with in a more informal manner.
Train its employees on the meaning of workplace bullying under
the Fair Work Act 2009 (Cth), including with respect to
what is meant by reasonable management action.
Workplace bullying in a nutshell
For a worker to be considered bullied at work, the Fair Work
Act 2009 (Cth) requires that the alleged bullying behaviour
satisfy four limbs, namely the behaviour:
Must have occurred whilst the person was at work.
Creates a risk to the person's health and safety.
Reasonable management action carried out in a reasonable manner
is not considered workplace bullying, and includes the ability for
employers to take management action such as directing the
performance of work, performance management processes and
disciplinary action. The key is the reasonableness of the
Self-belief and self-conviction not enough
In a recent case before the Fair Work Commission
(FWC ),Gore  FWC 2559, a worker's workplace
bullying claim was dismissed where it did not meet the statutory
definition, being determined as "over-estimated and
insubstantial, in particular, there was no repetition of
The case involved a casual receptionist making bullying claims
against three co-workers. Examples of some of the claims made
Walking into the reception room to check the worker was at her
Complimenting another employee.
Reprimanded for coming in late.
Stopping sending her text messages.
Her manager ignoring her suggestions for improvements to the
Being told by her manager how to improve performance in
relation to a task.
Walking away from her (noting that the worker subsequently
walked away from her manager in the same manner).
The above behaviour was held by Commissioner Cloghan as not
being unreasonable in the circumstances. Importantly, the FWC held
Any application of alleged bullying is both inevitably,
and importantly, highly contextual. However, the legislation does
not provide for an applicant's self-belief or self-conviction,
to trump all other factors...sometimes we are just overly sensitive
to what is happening around us when we allegedly see a
When examining whether reasonable workplace behaviour and
reasonable management action had occurred, the FWC held it cannot
simply cede to a person's feelings of being anxious or
uncomfortable in order to make a finding.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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