Bullied at work? What the law counts as bullying and how to stop it

What the law counts as bullying

Bullying can damage a worker's mental and physical health, and it is a work health and safety risk that employers are expected to manage. Since 1 January 2014, the Fair Work Act 2009 (Cth) has given workers a way to ask the Fair Work Commission to stop it.

Section 789FD of the Act says a worker is bullied at work if, while at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker (or a group of workers the worker belongs to), and that behaviour creates a risk to health and safety. Each part matters:

(a) repeated: a single incident, however upsetting, is not bullying in this sense;

(b) unreasonable: behaviour that a reasonable person, looking at all the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening; and

(c) a risk to health and safety, which includes mental health.

Depending on the circumstances, belittling or humiliating comments, swearing or yelling at someone, aggressive or intimidating conduct, spreading rumours, unjustified criticism, deliberately excluding someone from work activities and threats of violence can all be bullying.

What bullying is not

Section 789FD(2) says that reasonable management action carried out in a reasonable manner is not bullying. Managers are entitled to manage. Setting realistic deadlines and performance goals, telling a worker fairly that their performance is not good enough, transferring someone for genuine operational reasons, investigating a complaint and taking justified disciplinary action are all part of normal management, even when they are stressful for the worker.

The question is whether the action was reasonable, not whether it could have been done better. But management action can stop being reasonable if, for example, it ignores the employer's own policies, is taken for an improper purpose, or is carried out in a humiliating way.

An example: two real estate workers and a property manager

In Application by C.F [2015] FWC 5272, two employees of a relatively small real estate business applied for orders to stop bullying by a property manager. They alleged belittling conduct, swearing and yelling, daily interference with their work, slamming objects on their desks, attempts to get them to victimise other staff, and threats of violence. The employer said the allegations were denied or significantly qualified by the property manager, and that the two workers had themselves acted unreasonably in some respects.

By the time the Commission dealt with the applications, the property manager had resigned and taken an equivalent job with a related company at a different location. Both workers were off work, had lodged workers' compensation claims and were having medical treatment.

At a conference on 30 July 2015 the employer conceded that a finding of bullying could be made. Commissioner Hampton found that the workers had been bullied at work. Because the two businesses had some common ownership, and the property manager had already been seconded back to the workplace, he was satisfied there was a real risk the bullying would continue. He noted that, when the applications were made, the workplace had no formal anti-bullying or grievance procedure.

With the consent of all parties, the Commission made two kinds of orders, to last 24 months. The first required the workers and the property manager not to approach each other or attend each other's workplace. The second required the employer to put in place anti-bullying policies, procedures and training, and to clarify reporting arrangements. The decision was published without the parties' names, as all of them wanted.

How a stop bullying order works

A worker who reasonably believes they have been bullied at work can apply (s 789FC). Worker has a wide meaning: it includes employees, contractors, labour hire workers, apprentices, students on work experience and volunteers. The bullying must happen in a constitutionally-covered business: in practice a trading or financial company, the Commonwealth or a Commonwealth authority, or a business in a Territory. There is no time limit, and the Commission must start dealing with an application within 14 days.

The Commission can make any order it considers appropriate to prevent further bullying, but only if there is a risk the bullying will continue, and it cannot order anyone to pay money (s 789FF). That is why a worker who has already left the job usually cannot get an order. Breaching an order can lead to penalties in court.

Workers employed by a sole trader, a partnership or a WA government body are usually in the WA state system, and WA council workers may be too. They can apply to the WA Industrial Relations Commission under a matching provision of the Industrial Relations Act 1979 (WA). Sexual harassment now has its own rules and its own orders, explained on our sexual harassment pages.

What this means for you

If you are being bullied, keep a dated record of each incident and who saw it, raise it in writing under your employer's policy if it is safe to do so, and see your GP if your health is affected. Consider getting advice early, especially before you resign. Bullying that forces you out may support other claims, such as unfair dismissal, where time limits are short: 21 days at the Fair Work Commission and 28 days in the WA state system.

If you run a business, have a clear policy on acceptable behaviour, investigate complaints promptly and fairly, and act to separate the people involved while you do. A business without a working complaints process can find the Commission ordering it to build one.