Workplace bullying in Australia is when a person or group repeatedly behaves unreasonably towards a worker, and that behaviour creates a risk to health and safety. Reasonable management action carried out in a reasonable way is not bullying. If you still work there, you can apply to the Fair Work Commission for an order to stop it.
What is the legal definition of workplace bullying?
The Fair Work Commission says bullying at work occurs when:
- a person or group of people behaves unreasonably towards a worker or group of workers at work
- this happens more than once
- this creates a risk to health and safety.
All three parts have to be present. A comment made once and not repeated is not bullying, even if it upset you.
What are examples of workplace bullying?
The Commission lists being aggressive or intimidating, using abusive or offensive language, mocking or humiliating someone and holding initiation ceremonies.
Depending on the situation, bullying can also include:
- teasing or playing jokes
- leaving some workers out of work-related events
- giving someone too much or too little work
- giving someone work above or below their skill level
- not giving someone information they need to do their job.
What is not bullying?
Reasonable management action carried out in a reasonable way. The Commission's list of reasonable management action includes starting a performance improvement plan, taking disciplinary action for misconduct, telling a worker their performance or behaviour isn't satisfactory and asking a worker to perform reasonable duties.
The way it is done matters too. If the action is carried out in an unreasonable way, and it is repeated, it could still be bullying. Our guide to how long a PIP should last covers what a reasonable process looks like.
Bullying is also different from sexual harassment and discrimination. Sexual harassment can be a one-off event and doesn't need a risk to health and safety. Bullying doesn't have to relate to a protected attribute such as sex or race.
What should you do if you're being bullied at work?
The Commission suggests these steps, in whatever order is safe for you:
- Get support from someone you trust, such as your manager, a friend, a union representative or a health professional.
- Tell the person their behaviour is inappropriate and ask them to stop, only if you feel safe. You don't have to speak to them before coming to the Commission.
- Speak to your supervisor, human resources, a health and safety representative or a union representative.
- Consider a formal complaint under your workplace's bullying policy.
- Apply to the Commission if none of that helps, or if it isn't safe to act.
Keep a dated note of each incident, who was there and any messages or emails, so you can describe what happened later.
Your workplace may have an employee assistance program with free counselling. Lifeline is on 13 11 14 at any time.
Who can apply for an order to stop bullying?
To apply, you must be a worker in a constitutionally covered business, still working in or connected to the workplace where the bullying happened, and at risk of it continuing. Workers include employees, contractors, labour hire employees, apprentices, trainees, work experience students and volunteers. Proprietary limited companies and the Australian Government are covered.
You can't apply once you no longer work for that employer. The national laws may not cover you if you work for a sole trader or partnership, a state government department or some local governments. State and territory laws may still protect you, and your state's work health and safety regulator can help.
If you have left because of the way you were treated, our guide to constructive dismissal covers the other route.
What can the Fair Work Commission do?
The Commission asks the employer and anyone named to respond within 7 days, aims to contact everyone within 2 weeks of the application, and aims to finalise most cases within 16 weeks. In most cases the parties resolve the issue without a hearing.
Where there is a risk the bullying will continue, a Commission Member can order the people involved to stop, order the employer to comply with or review its bullying policy, or order it to give workers information, support and training. The Commission can't order compensation, disciplinary action or someone's dismissal.
Free legal advice may be available through the Commission's Workplace Advice Service if you are eligible.
What did TAC readers tell us?
We asked our community for their worst boss stories, and whether people who are painful to work with still get rewarded.
Many said the people others complained about kept being promoted.
There was a partner who retired and had lots of bullying complaints against them from staff but they did nothing until it was about bottom line and their pipeline was weak
Watched someone get rapidly promoted who had 3 open HR cases against him for how he treated lower grades.
Manager bullied me to the point my mental health became even worse. Came back on 4 days as per psych and GP recommendation. Was micro managed for every minute of every day. Worst experience of management in my career.
Recommend employees educate themselves on what aspects of your role could be considered hazardous and what your internal HR and WHS policies state. Document everything.
This is general information, not legal advice. Your employer's bullying policy, award or agreement may set out its own complaint process.
Sources
- Fair Work Commission, What is bullying at work? (the three part definition, examples, one-off comments, reasonable management action)
- Fair Work Commission, About reasonable management action (the list of reasonable actions, unreasonable and repeated action can still be bullying)
- Fair Work Commission, What to do if you're bullied at work (support, talking to the person, speaking to work, formal complaint, applying, EAP, Lifeline)
- Fair Work Commission, Who can apply to stop bullying (eligibility, who is a worker, covered businesses, who is not covered)
- Fair Work Commission, How we help stop workplace bullying (orders available, no compensation or dismissal, most cases resolve without a hearing)
- Fair Work Commission, The process to resolve workplace bullying (7 days to respond, 2 weeks, 16 weeks, Workplace Advice Service)
- Fair Work Ombudsman, Bullying in the workplace (difference from sexual harassment and discrimination, state and territory bodies)
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