Employees who reasonably believes that they have been bullied at work can apply to the Fair Work Commission for an order to stop bullying. When assessing these claims, the Commission will consider the evidence and determine whether that evidence constitutes bullying behaviour.
The Fair Work Act states that bullying in the workplace occurs when an employee (or group of employees) subjects a colleague to repeated unreasonable behaviour, which has the risk of causing damage to the recipient's health and safety.
Reasonable management action carried out reasonably is not considered workplace bullying.
What is repeated unreasonable behaviour?
While no specific number of incidents is required for behaviour to be considered 'repeated', there must be more than one occurrence. Under this definition, repeated unreasonable behaviour refers to persistent behaviour, or a range of behaviours, over time.
Unreasonable behaviour can take many forms, including intimidation, threatening, humiliation, shouting, singling-out, physical or verbal abuse, belittling, victimising, innuendo, disrespect, mocking, and discrimination. The test applied by the Fair Work Commission when considering if the behaviour was unreasonable is whether a reasonable person would see it as unreasonable in the circumstances.
Risk to health and safety
For behaviour to be considered bullying, it must risk the recipient's health and safety. This risk includes the possibility of danger to health and safety, not just actual danger. The bullying behaviour must create a risk to the recipient's health and safety, but it does not have to be the only cause of the risk.
What does at work mean?
For an employee to be protected by the Fair Work Commission's anti-bullying laws, any alleged bullying must occur while they are at work. This is not defined in the legislation but is generally taken to mean while the employee is at the regular physical workplace or anywhere tied to work activities. For example, a worker may be considered 'at work' if working from home or another company's premises through labour hire.
The concept of being at work encompasses when an employee is performing work, regardless of time or location, and is engaged in activities authorised by their employer, such as during break times.
Risk of continued behaviour
Finally, for the Fair Work Commission to make a stop bullying order, there must be an ongoing risk that the employee will continue to be bullied by the accused individual or group. Applications must meet both criteria - the employee experienced repeated unreasonable behaviour at work that created a risk to their health and safety, and the risk is ongoing.
In Lacey and Kandelaars v Murrays and Cullen, two bus drivers made an application to stop bullying by their manager. The alleged repeated unreasonable behaviour included finding fault with work when there was none, raising his voice, being intimidating, and hiding in the bus to frighten the worker. The Commissioner found that the manager had engaged in repeated, unreasonable behaviour that had caused a risk to both workers' health and safety but because the organisation had already changed the employees' reporting lines, a stop bullying order was not made. Despite the finding of repeated unreasonable behaviour, the change in reporting line removed the risk of further bullying, so the claim did not meet both criteria.
