Workplace bullying creates a risk to work health and safety, which can have major psychosocial and psychological effects on workers' mental health. Bullying in the workplace is not acceptable, and there are laws, and often workplace policies and procedures, in place for reporting and addressing such bullying. This article will explore what behaviour constitutes bullying under the Fair Work Act 2009 (Cth) and explain the formal complaint pathway to apply to the Fair Work Commission for an order to stop bullying at work.
There are many reasons why people don't report being bullied at work. One of them is that you might believe that bullying is part of the accepted workplace culture, or you think that opportunities for promotion at work or the wider industry will be affected. You might have a lack of knowledge about bullying behaviour and its effects on mental health and wellbeing. If you are experiencing workplace bullying, we strongly recommend you seek medical assistance and also legal advice about your options under relevant employment laws.
Bullying can occur:
- between workers;
- from managers/supervisors to workers;
- from workers to managers/supervisors; and
- by or towards other people at your workplace, such as clients, patients, students, customers and members of the public.
What is workplace bullying?
The nationally accepted definition of workplace bullying is:
"Repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety."
What classifies as repeated behaviour?
Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time. A single incident of unreasonable behaviour is not workplace bullying. However, if it is repeated, and/or it escalates, you should take the actions available to you to address it.
What classifies as unreasonable behaviour?
Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable. In other words, it is an objective test having regard to all the relevant circumstances that apply at the time.
Unreasonable behaviour includes (but is not limited to) behaviour that victimises, humiliates, intimidates or threatens someone.
Assessing the risk to health and safety
The unreasonable behaviour must also create a risk to health and safety. A risk to health and safety means the possibility of harm to health and safety.
This does not mean you have to prove that there is actual harm to your health and safety. In other words, you do not have to prove that you have suffered an actual illness or injury in order to demonstrate the necessary risk. However, there must be a causal link between the behaviour and the risk to health and safety.
This means that the unreasonable behaviour carried out by one or more workers has to be responsible for causing a risk to your health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk.
Examples of workplace bullying behaviour
Examples of behaviour that may be workplace bullying if they are repeated, unreasonable, and create a risk to work health and safety include the following:
- abusive, insulting or offensive language or comments;
- unjustified criticism or complaints;
- deliberately excluding someone from workplace activities;
- withholding information that is vital for effective work performance;
- setting unreasonable timelines or constantly changing deadlines;
- setting tasks that are unreasonably below or beyond a person's skill level;
- denying access to information, supervision, consultation or resources to the detriment of the worker;
- spreading misinformation or malicious rumours; or
- changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.
Can workplace bullying occur outside the workplace or normal working hours?
The Fair Work Act 2009 (Cth) definition of workplace bullying includes a reference to 'while the worker is at work'. The difficult question of when a worker "is at work" was considered by the Full Bench in Bowker v DP World Melbourne Limited.
The Full Bench concluded a worker need not be physically at work when the unreasonable behaviour occurs. Instead, the bullying conduct (repeated, unreasonable behaviour) must occur at a time when the worker is "performing work". Hence a worker will be 'at work' at any time the worker performs work, regardless of his or her location or the time of day.
Further, the individual(s) who engage in the unreasonable behaviour do not have to be 'at work' at the time they engage in that behaviour. Other circumstances where a worker will be considered to be 'at work' include while on an authorised meal break at the workplace.
What is not workplace bullying?
Managers and supervisors have authority in the workplace to reasonably direct and control the way work is done, as well as provide fair and reasonable feedback on a worker's performance. Such actions by management exercising their authority will not constitute workplace bullying as long as it is carried out in a reasonable manner.
Often workers might take offence or feel some discomfort when management:
- decide not to select a worker for a promotion;
- transfer a worker to another role or area for operational reasons;
- inform a worker about unsatisfactory work performance;
- inform a worker about unreasonable behaviour; or
- take disciplinary action, which is justifiable in the circumstances.
As long as any of the above actions are carried out in a reasonable manner, they will ordinarily not constitute workplace bullying. What is and is not reasonable will depend on all of the circumstances in place at the relevant time.
For more information on whether management action is reasonable, please see our earlier blog, "Am I being bullied or is it reasonable management action?"
Does unlawful discrimination or sexual harassment amount to bullying?
Unreasonable behaviour may involve unlawful discrimination or sexual harassment in the event it meets the above requirements.
Generally, sexual harassment includes unwelcome sexual advances, requests for sexual favours or other unwelcome conduct of a sexual nature that could be expected to make a person feel offended, humiliated or intimidated.
The Fair Work Commission has introduced a regime which enables workers to apply to the Commission for a 'stop sexual harassment' order. You can read more about Australia's first stop sexual harassment case here.
Unlawful discrimination means a person or group of people are treated unfairly or less favourably than others because they have a particular characteristic or belong to a particular group of people.
Protected traits include race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. For example, it would be unlawful for an employer not to employ or promote a woman because she is pregnant or may become pregnant.
Discrimination is unlawful under state and territory anti-discrimination law and workplace relations laws. Workers can seek remedies through the Fair Work Commission or state and territory equal opportunity tribunals.
What can you do if you're being bullied at work?
Workers can apply for an order to stop bullying under the Fair Work Act. For a worker to be able to apply to the Fair Work Commission for orders to stop bullying, the worker must reasonably believe that they have been bullied at work.
This means the applicant must hold an actual and genuine belief and there must be something to support it or some other rational basis for the holding of the belief. The employee must also be currently employed – an application is not available if the employee has been terminated or resigned.
The 'stop bullying at work' regime is designed to prevent bullying at work. The Commission may make any order it considers appropriate to prevent the risk of further harm. Before it makes an order, the Commission must be satisfied that:
- the worker has been bullied at work; and
- there is a risk that the worker will continue to be bullied at work.
Orders by the Commission are not designed to punish individual perpetrators or provide financial compensation for past harm to the person being bullied. However, in making such an application, it remains possible for the parties to come to a settlement that includes the payment of compensation.
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.
