Bullying is, unfortunately, something that happens in may workplaces. It poses a risk to the health and safety of employees as it may affect workers’ mental and physical health.
It is in the interests of employers to protect employees from bullying if they are to maintain a happy and productive workplace.
On 1 January 2014 anti-bullying provisions were introduced into the Fair Work Act 2009 (Cth). These provisions give the Fair Work Commission broad powers to make any orders they consider appropriate to prevent a worker from being bullied at work
What is Workplace Bullying?
Under s 789FD of the Fair Work Act 2009, a worker is bullied at work if an individual, or group of individuals, repeatedly behaves unreasonably towards the worker, or a group of workers, of which the worker is a member. This unreasonable behaviour must create a risk to health and safety.
What is unreasonable behaviour?
Unreasonable behaviour is behaviour that a reasonable person, in the circumstances, would see as unreasonable. This includes behaviour that is victimising, humiliating, threatening or intimidating.
Examples of behaviour that constitute workplace bullying include:
– Humiliating comments
– Aggressive and intimidating behaviour
– Insulting or offensive comments
– Abusive behaviour
– Practical jokes
– Unjustified criticism
– Spreading rumours
– Deliberately excluding a worker from work-related activities
– Any violence- for example physical assault or the threat of physical assault
What bullying is not?
Workplace bullying is not a single incident of unreasonable behaviour. It must be repeated.
Workplace bullying is not reasonable management action carried out in a reasonable manner. It is normal for employers to give feedback and criticism on an employees work.
Management action will not be reasonable if it departs from established policies or procedures.
Examples of reasonable management action include:
– Setting realistic deadlines and performance goals
– Transferring a worker to another role for operational reasons
– Informing a worker that their performance is unsatisfactory in a fair and reasonable way
– Taking disciplinary action where it is justified.
The recent case of C.F  FWC 5272 is an example of where an application for an order to stop bullying was successful. The applicants worked for a real estate business and claimed that they were bullied by their Property Manager, who had since left the business, and become employed by a related company. The alleged bullying behaviours included; belittling conduct, swearing, yelling, undermining the applicants’ work, and physical intimidation. The Commissioner found that the behaviour amounted to bullying under s 789FD of the Fair Work Act 2009.
Although the Property Manager had moved on to another workplace, the Commissioner found that there was still potential for interaction between the Property Manager and the employees. The Property Manager was also seconded back to his original workplace on a short-term basis, which meant that there was a risk that the workers would continue to be bullied by the Property Manager. Therefore, the Commissioner made orders to stop the bullying. The Commissioner made two types of orders. The first type were aimed at preventing contact between the employees and the Property Manager, and the second type were to improve the workplace culture by implementing anti-bullying policies, procedures to deal with bullying, and training on how to deal with workplace bullying.
Lessons for Employers
Employers should have in place proper and clear policies on the appropriate standards of behaviour in the workplace. These policies should identify what happens if they are breached.
Complaints of bullying should be investigated in accordance with the employer’s policies on bullying. Proper and transparent investigations should be conducted when a complaint of bullying arises. Action should be taken to resolve the issue, including limiting or preventing continuing action between employees.
Employees subjected to ongoing bullying can make an application to the Fair Work Commission for an order to stop bullying. However, if employers have in place proper policies and procedures to deal with bullying, the issues should be able to be resolved within the workplace.