Bullying

Contributed by CatherineRusso and current to 27 July 2018

Workplace bullying can be described as repeated and unreasonable or inappropriate behaviour directed at a worker, or group of workers, that creates a risk to health and safety.

Examples of bullying may include:

• insults, belittling opinions, teasing, patronising titles or nicknames, making an employee the target of practical jokes;
• excluding or isolating employees from conversations or team activities;
• offensive language, yelling, screaming, verbal abuse or rudeness;
• giving employees deliberately impossible assignments, unreasonably overloading an employee with work or withholding necessary information to perform the work; or
• deliberately changing work rosters to inconvenience a specific employee.

However, bullying does not include genuine and reasonable performance management actions, reasonable directions as to how work is done or genuine and reasonable disciplinary procedures.

An employee (or in some cases, a worker) who has been subjected to bullying has several legal options available for making complaints about this conduct. Most commonly these involve:

• if applicable, a complaint to the FWC under the anti-bullying provisions of the FW Act (described below);
• complaining to WorkSafe, a regulator that is empowered to investigate incidents that pose a risk to employee health and safety. Where an employer is found to be liable for bullying behaviour, they may face prosecution for breaching occupational health and safety legislation. This may result in fines or, in some serious cases, imprisonment;
• lodgement of a workers’ compensation claim where workplace bullying has resulted in the employee suffering a mental or physical injury;
• lodgement of an equal opportunity complaint if the bullying conduct also meets the legal definition of discrimination, sexual harassment, vilification or victimisation. For example, if an employee is repeatedly targeted for unfair treatment/bullying conduct because of their race, sex or age, this may amount to unlawful racial, sex or age discrimination; or
• commencement of common law proceedings for breach of contract and / or negligence.

Federal Anti-Bullying Jurisdiction

On 1 January 2014, Part 6-4B of the FW Act commenced, which provides a process for workers who believe that they have been bullied at work to make an application to the FWC to seek orders to stop the bullying.

When a person makes an application to stop bullying at work, the FWC must deal with these types of applications promptly, within 14 days after the application is made (see section 789FE of the FW Act).

Who is covered by the FWC anti-bullying jurisdiction?

The federal anti-bullying jurisdiction does not cover all individuals and businesses in Australia. It applies to a worker at work in a constitutionally covered business.

A “worker” is defined as an individual who performs work in any capacity.[1] It includes work as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. Members of the Australian Defence Force are excluded from the definition.

In order to bring a claim, the worker must also be at work in a constitutionally covered business. This means that workers who are performing work at an unincorporated business, a state public service department or agency will not be able to bring a claim in the FWC.

What is bullying?

Pursuant to section 789FD of the FW Act, a worker is considered to be bullied at work if:

1. an individual or group of individuals repeatedly behaves unreasonably toward the worker; and
2. that behaviour creates a risk to health and safety.

However, it does not apply to reasonable management action carried out in a reasonable manner (section 789FD(2)). For example, it is reasonable for managers and supervisors to give feedback on a worker’s performance or implement disciplinary action if they are carried out in a reasonable manner.

In Amie Mac v Bank of Queensland Ltd and Others [2015] FWC 774 at [99], Hatcher VP provided a number of examples of conduct "which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work", as including:

“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.

What orders can be made?

The jurisdiction of the FWC is directed solely to stopping future conduct.

Some orders that have previously been made include:

• for an individual respondent not to denigrate or humiliate the applicant and behave in a way that is reasonable and professional, and not unreasonably delay the performance of work (see Roberts v VIEW Launceston Pty Ltd & Others [2015] FWC 6556, [2015] FWC 7244 and PR573139);
• for a company to arrange for a Work Safe inspector to attend meetings with parties and to implement, and actively monitor, the effectiveness of control measures identified in risk assessments (see Bowker & Others v DP World Melbourne Limited & Others [2015] FWC 7312);
• for a company to provide anti-bullying training and an updated anti-bullying policy and complaints handling procedure to all of its staff (see Re CF [2015] FWC 5272; PR569997)
• by consent, interim orders preventing the applicant and another worker from communicating with, or making derogatory statements to other workers about, one another (see Re Kypuros [2017] FWC 3082).

This jurisdiction has a preventative focus rather than a punitive one meaning that the FWC does not have the power to make orders for financial payments or compensation.

If the worker is no longer engaged at the workplace where they allege the bullying occurred, and in other circumstances where there is no risk of the bullying behaviour continuing, the FWC cannot make any orders.

Further information

The FWC publishes an anti-bullying benchbook that provides further information about how to lodge or respond to anti-bullying applications. The benchbook can be accessed at: https://www.fwc.gov.au/resources/benchbooks/anti-bullying-benchbook

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