Bullying

The Fair Work Act 2009 defines bullying at work as an individual or group repeatedly behaving unreasonably towards a worker or group of workers at work. This behaviour must also create a risk to health and safety.

Am I Being Bullied At Work?

We all have distinct memories of the school yard bully, but what happens when bullying transitions past childhood and into the workplace? When does it go further than competitive behaviours in the workplace and can be defined as bullying at work?

The Fair Work Act 2009 defines bullying at work as an individual or group repeatedly behaving unreasonably towards a worker or group of workers at work. This behaviour must also create a risk to health and safety. For example, if you are at the receiving end of any of the following behaviors, these can all constitute bullying at work:

Belittling conduct

Swearing or yelling directed at you

Humiliating comments

Spreading of malicious rumors

Teasing

Aggressive or intimidating behavior

Unreasonable work expectations

Physical intimidation (e.g., invading personal space, slamming objects on your desk)

Daily interference with or undermining of your work

Attempts to incite others to victimize you

Threats of violence (explicit or implied)

Deliberately excluding you from work-related activities

Withholding vital information

Setting unreasonable timelines or constantly changing deadlines

Assigning tasks unreasonably below or beyond your skill level

Denying access to necessary resources

Changing work arrangements to deliberately inconvenience you

Excessive scrutiny of your work

What Is Not Classified As Bullying?

Any behaviour that is considered to be reasonable management action carried out in a reasonable manner is not considered to be bullying as defined by the Fair Work Act.

Reasonable management action refers to legitimate and appropriate actions taken by managers or supervisors in the course of their duties. These actions, when carried out in a reasonable manner, are not considered bullying, even if they cause stress or discomfort to an employee.

Examples of reasonable management action may include:

Performance appraisals

Ongoing meetings to address underperformance

Counselling or disciplining a worker for misconduct

Modifying a worker's duties, including by transferring or redeploying the worker

Investigating alleged misconduct

Lawfully denying a worker a benefit in relation to their employment

Lawfully refusing an employee permission to return to work due to a medical condition

They must be lawful

They must be justified by the circumstances

They must be carried out in a manner that is not irrational, absurd or ridiculous

When determining if management action is reasonable, the Commission will consider:

The circumstances that led to and created the need for the management action

The circumstances while the management action was being taken

The consequences that flowed from the management action

The test is whether the management action was reasonable, not whether it could have been undertaken in a more reasonable or more acceptable manner. Management actions do not need to be perfect or ideal to be considered reasonable.

Here are some examples:

In one case, a manager's actions in holding one-on-one meetings with an employee about performance and minimum standards were considered reasonable management action, even though the employee perceived the manager's manner as rude and belittling.

In another case, implementing a performance improvement plan (PIP) was considered reasonable management action when shortcomings in an employee's performance had been identified over a considerable period and brought to the employee's attention through documented performance development assessments.

However, in a different case, management action was not considered reasonable when guidelines on monitoring and mentoring weren't followed, feedback wasn't provided during the process, and insensitive action was taken by continuing to deliver criticism via letters despite the employee's known sensitivities.

What Steps Can I Take To Stop Bullying?

If you are being bullied at work, the we recommend first attempting to resolve it with your employer by making a formal complaint. It's important also to remember that making a complaint about bullying is a protected workplace right. It is unlawful for your employer to retaliate against you because of the complaint.

If that does not resolve your issue, you can lodge an application for an order to stop bullying with the Fair Work Commission (provided you are covered by the Federal employment system) or the WA Industrial Relations Commission. This is discussed further below but it's important to remember that this application does not entitle you to financial compensation, unless the order is subsequently breached by your employer.

MKI Legal can also assist you with negotiating with your employer. Sometimes getting a lawyer involved can have more impact and increase your chances of getting a positive outcome. It's important also to remember that making a complaint about bullying is a protected workplace right under the Fair Work Act. It is unlawful for your employer to retaliate against you because of the complaint. We often find that bullying often plays a part in a larger claim, such as an unfair dismissal or a general protections claim - and these types of claims can provide you with financial compensation. We regularly advise employees who are bullied at work, and we regularly lodge claims which have a bullying element.

Stop Bullying Order Application With Fair Work?

You must submit a Form F72, application for an order to stop workplace bullying to the Fair Work Commission.

Mediation conducted by the Fair Work Commission is usually the first step to resolve your bullying complaint.

If you and your employer cannot reach an agreement then a formal hearing may be the next appropriate avenue.

Western Industrial Relations Commission

Some employees are not covered under the Fair Work Act because they are not part of the national employment system, therefore they are not eligible to make a claim to the Fair Work Commission.

These employees generally include:

Employees of the WA State Government

Employees employed by a local government authority (specifically the authorities listed in the Fair Work State Declaration)

Employees in the private sector, but only if their employer is not a national system employer as defined in the Fair Work Act 2009 (Cth). This generally includes employees of,

Unincorporated businesses

Partnerships

Sole traders

Certain corporations not substantially engaged in trading or financial activities

These employees can instead make an application to the WA Industrial Relations Commission, instead of the Fair Work Commission (WAIRC).

Eligible employees can file a Form 14 - Application for an Order to Stop Bullying or Sexual Harassment with the WAIRC.

The provisions under the Western Australian Industrial Relations Act are similar to those under the Fair Work Act.

It's crucial to correctly identify whether to file with the Fair Work Commission or the WAIRC based on your employment situation.

The process in the WAIRC typically involves:

Lodging the application

The WAIRC serving the application on the respondent(s)

A conciliation conference to attempt resolution

If unresolved, the matter proceeds to a formal hearing

Remedies With A Stop Bullying Order

At a hearing, the Fair Work Commission ( or the WAIRC) is able to make an appropriate order to prevent any further bullying of you, for example, an order for the perpetrators to cease the bullying.

A stop bullying order can only be made while you are still employment with that employer.

It is important to be aware that compensation is not an option unless there is a breach of any Commission orders. If that occurs, the Commission can order fines or compensation to be paid to you.

Previous Stop Bullying Decisions

For an idea of how a stop bullying order may assist you, some case are summarised below.

CF v NW [2015] FWC 5272

Two employees (CF and NW) of a small real estate business filed applications for orders to stop bullying against a property manager (ED).

The alleged bullying behaviors included:

Belittling conduct

Swearing and yelling

Use of inappropriate language

Daily interference and undermining of the applicants' work

Physical intimidation, including "slamming" objects on the applicants' desks

Attempts to incite the applicants to victimize other staff members

Threats of violence

The employer initially denied or qualified many allegations, but ultimately conceded that bullying conduct had occurred in the workplace.

The Commission found that repeated unreasonable behavior had taken place, creating a risk to health and safety. This met the definition of workplace bullying under the Fair Work Act.

Orders were made with the consent of all parties to:

Prevent CF, NW and ED from approaching each other or attending each other's workplaces

Establish anti-bullying policies and procedures

Implement workplace behavior training

Clarify reporting arrangements

The orders were to remain in place for 24 months.

The parties were de-identified in the published decision to support the consent arrangement and facilitate ongoing working relationships.

Lynette Bayly [2017] FWC 1886 (5 April 2017)

The applicant (Bayly) was an executive director at a TAFE. The applicant made an application for a stop bullying order. Concurrently, the employer was conducting an investigation into alleged misconduct by the applicant. The applicant claimed that this investigation only arose after she lodged a complaint regarding another staff member and as such constituted bullying conduct.

Prior to the hearing of the anti-bullying application, the applicant applied for, and successfully obtained an interim order halting the disciplinary investigation or termination of her employment.

Ari Kypuros [2017] FWC 3082 (6 June 2017)

The applicant (Ari) applied for a stop bullying order for alleged bullying by his uncle at his workplace. It was alleged that intimidating behaviours occurred as well as verbal disparagement.

An interim order was made to prevent further escalation of the behaviours into potential acts of physical violence. The order required Ari and his uncle:

Not to communicate directly with one another at work; and

Not to cause another person to relay disparaging comments or messages to each other; and

Not to come within 10m of one another.

Further, the workplace was ordered to implement workplace bullying training, policies and procedures.