Australia: Enough Is Enough - Stopping Bullying In The Workplace In Australia

Last Updated: 22 August 2016
Article by Brian S. Cousin

Bullying at work has long been recognized as a problem. The potential negative consequences are endless, including risks to health and safety, adverse impacts on culture and morale, increased absenteeism and turnover, damage to business reputation, increased costs and increased exposure to legal claims.

As a result, it was not a surprise when, in January 2014, the Australian Government took steps toward eradicating the problem by introducing into one of its principal pieces of employment legislation, the Fair Work Act 2009 (Cth) (FW Act), a stop-bullying jurisdiction. That jurisdiction enables a "worker" who reasonably believes that he or she has been "bullied at work" to apply to the Fair Work Commission (FWC) for a stop-bullying order.

Importantly, the concept of a "worker" is widely defined and has the potential to include not only employees, but also contractors, subcontractors, labor hire workers, work experience students, trainees, apprentices and some volunteers. This means that many persons performing work in or for a business may be eligible to seek a stop-bullying order if they are "bullied at work."

What orders can the FWC make?

The FWC can only make an order to stop bullying if it is satisfied that the worker has been "bullied at work" and there is a risk that the bullying will continue. The orders it can make are far-reaching; the FWC may do anything it considers appropriate to prevent the worker from being bullied at work short of requiring the payment of money.

When determining an appropriate order, the FWC must take into account the findings of any investigation that may have been conducted into the alleged bullying, including whether there were procedures available to the bullied worker to resolve his or her grievance and, if such procedures were followed, the outcome of that process. It may also take into account any other facts and circumstances it considers to be relevant.

When is a worker "bullied at work"?

A worker is "bullied at work" if the following three elements are present:

  • The worker is at work in a "constitutionally-covered business," defined as a constitutional corporation (such as a trading, financial or foreign corporation), the Commonwealth or a Commonwealth authority, a body corporate incorporated in a Territory, and a business or undertaking principally conducted in a Territory or Commonwealth place;
  • An individual or a group of individuals repeatedly behaves unreasonably towards the worker or a group of workers to which he or she belongs; and
  • The unreasonable behavior creates a risk to the worker's health and safety.

It is important to note here that being subjected to a reasonable management action carried out in a reasonable manner does not constitute being bullied at work.

Lessons from decisions

While the stop-bullying jurisdiction has not had the traction that the Australian Government had originally anticipated, the decisions that have been handed down by the FWC have shed some much needed light on the scope of the jurisdiction.

We discuss below some of the issues that have been clarified by these decisions.

The applicant must be a "worker".

While the statutory definition of a "worker" is broad, the FWC has held that an individual will only be a worker for the purposes of the stop-bullying jurisdiction if that individual carries out work and does so for a person conducting a business or undertaking. This means that there must be a connection between the work being carried out by the individual and the undertaking of the employer/principal. For example, the FWC has indicated that work being carried out by a student for a teacher, domestic work by a family member or any relationship outside the commonly understood sense of work for hire (paid or unpaid) is unlikely to fall within the scope of the stop-bullying jurisdiction.

There must be a temporal connection between the bullying conduct and the worker being at work.

Before a stop-bullying order can be made, there must be a temporal connection between the bullying conduct and the worker being "at work."

While each matter will turn on its facts, bullying conduct will likely be regarded as being "at work" if it occurs while the worker is performing work (regardless of the worker's location or the time of day) or is engaged in some other activity that is authorized or permitted by the employer (or in the case of a contractor, by the principal), such as being on a meal break or accessing social media while performing work.

The concept of "bullying" can be wide.

The FWC has observed that bullying can take many forms, including humiliating, intimidating or threatening behavior.

In one decision, it found that the manager of a real estate business had engaged in repeated unreasonable bullying behavior toward two employees by swearing at them, undermining their work, belittling them, physically intimidating them, slamming objects on their desks, using threats of violence and inciting them to victimize other staff members.

Other cases have held that spreading misinformation or ill will against a worker could constitute bullying and as can criticizing or gossiping about a worker, or swearing at a worker in circumstances where the language "departs from normal social interaction in the workplace."

Importantly, the worker's perception of the alleged bullying conduct will not necessarily be determinative. The FWC will look at the alleged conduct objectively and decide whether it constitutes bullying. For example, in one case, a worker honestly believed that he was being bullied by his senior manager's allegedly unrestrained and "malevolently motivated" micromanagement. However, the FWC determined that the manager's behavior constituted reasonable performance management—an "ordinary exercise of management prerogative"—and, hence, was not bullying.

There must be a continued risk of bullying.

The FWC has had cause to consider stop-bullying applications where the worker has ceased to be employed because, for example, the worker was terminated or his or her contract term expired. In these cases, the FWC determined that it could not be satisfied that there was a risk of the bullying continuing and so the applications were dismissed.

This should not be taken to mean that termination of a worker is an appropriate response to a stop-bullying application. Such conduct would likely result in an employer or principal facing a different type of complaint, namely a general protections claim under the FW Act, on the grounds that it took an adverse action to prevent the worker from exercising his or her workplace right to bring a stop-bullying claim. We therefore recommend consulting with counsel before terminating a worker who has brought a stop-bullying claim.

Person doing the bullying does not have to be a co-worker.

To be bullied at work, a worker must be subjected to repeated unreasonable behavior by an individual or group of individuals. Importantly, the bullying individual or individuals do not have to be the victim's co-worker(s). For example, the FWC recently refused to decline on jurisdictional grounds an application for a stop-bullying order made by a director/shareholder of a company with whom the company had contracted to provide caretaking and letting services to a Queensland resort, where that application was made against residents or owners of properties that were part of that resort. Further, the FWC had previously observed, in another matter, that "[t] he individuals engaging in the unreasonable behaviour need not be workers, for example, they could be customers of the business or undertaking in which the applicant works."

Risk to health and safety.

There must be a causal link between the behaviour and the risk to the worker's health and safety. Proof of actual harm to health and safety is not necessary. What is key is that the worker be able to demonstrate that the bullying behaviour creates a risk to his or her health and safety. While the bullying behavior must be a substantial cause of the risk, it need not be the only cause.

Possible orders

The FWC has broad powers to make any order that it considers appropriate to prevent a worker from being bullied (other than an order for the payment of money). Orders must be directed at preventing the worker from being bullied, and so far have largely been aimed at:

  • Managing interactions between a worker and certain individuals (such as, in one instance, requiring an individual to finish exercise at the workplace by 8:00 a.m. and preventing another worker from arriving at work before 8:15 a.m.); and
  • Requiring employers to implement appropriate-workplace-behavior policies. (In one matter, an employer was able to successfully avoid having a stop-bullying order made against it—after a worker was found to have been bullied at work—because of the positive measures it had taken to address the bullying culture in its workplace).

Recommended steps

Given the adverse consequences of workplace bullying and the FWC's readiness to take into account positive steps taken by employers to actively address workplace bullying, there is significant incentive for employers to take a proactive approach to eradicate or minimize bullying. We therefore recommend the following:

1. Ensure that policies requiring appropriate workplace behavior are in place.

Make sure your workplace has up-to-date written policies on appropriate workplace behavior, including bullying. These written policies should explain what bullying is and is not, and also lay out the business's expectations of its workers. The policies should also include a complaint process for bringing to the employer's attention any facts or allegations of inappropriate behavior in the workplace.

2. Educate staff about appropriate workplace behavior.

Have simple and on-point training explaining the business's expectations regarding appropriate workplace behavior and the procedures for addressing inappropriate behavior. In addition, make sure that managers are adequately trained on policies and procedures with respect to underperforming workers, workplace investigations and disciplinary actions. Schedule periodic refresher training for employees and managers.

3. Act quickly in the event of bullying allegations.

Employers should take immediate steps to address a bullying complaint (following the action plan in its appropriate-workplace-behavior policy) and prevent any future occurrence of the alleged inappropriate behavior.

4. Monitor compliance.

Periodically check compliance with your appropriate-workplace-behavior policy to ensure that they are being followed and are effective.

In December 2015, Dentons and Gadens announced their intention to combine.

This article was authored by Stephanie Nicole, Partner, Gadens LLP.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
11 Oct 2016, Webinar, Washington, United States

Join Dentons government contracts lawyers for a Public Contracting Institute (PCI) webinar series involving the most current industry analysis in government contract cost accounting from a team of leaders in the field with unparalleled experience.

8 Nov 2016, Webinar, Washington, United States

Join Dentons government contracts lawyers for a Public Contracting Institute (PCI) webinar series involving the most current industry analysis in government contract cost accounting from a team of leaders in the field with unparalleled experience

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.