Bullied at work? You’re not alone
19 Aug 2015
- Employment Law
Bullying, whether it occurs in the schoolyard or workplace, can have a devastating and long-term effect on a person’s mental health and wellbeing. It is a practice openly condemned, and in our contemporary society it is regulated by policies, procedures and protocols. As such, one would expect it to be on the decline. Sadly, this does not seem to be the case. Media reports in recent times have noted widespread bullying and harassment in the workplace, and attention has been drawn to the increasing number of workers compensation claims for associated mental stress.
What if I am being bullied?
From a legal perspective, there are a number of avenues of redress available if a worker has been bullied at work. These include causes of action under the following laws:
- Workers compensation e.g. for psychological injury;
- Occupational health and safety e.g. state-initiated prosecutions for health and safety offences;
- Common law e.g. breach of contract or negligence claims;
- Industrial law e.g. unfair dismissal and adverse action claims;
- Discrimination law e.g. on the grounds of sex or race; and
- Criminal law e.g. for threats of harm.
However, prior to 2014 there were no specific laws prohibiting workplace bullying. Growing discontent about the inadequacy of the existing legal framework for dealing with workplace bullying eventually led to the Federal Government introducing anti-bullying laws. These laws came into effect on 1 January 2014 and conferred powers on the Fair Work Commission to deal with complaints of bullying and make orders to ‘stop bullying’.
New anti-bullying laws – to whom do they apply?
The new anti-bullying laws apply to a broad category of ‘workers’, including employees, contractors, sub-contractors, trainees, work experience students and volunteers, but unfortunately, there are some exceptions. However, ACT workers will be pleased to know that the legislation applies to them. The legislation applies to workers in other states, but not all workers are covered.
Criteria to be satisfied
To seek an order under the new anti-bullying laws, the following criteria must be satisfied:
- An individual or group of individuals repeatedly behaves unreasonably towards a worker, or group of workers the worker is a member of, while at work;
- That behaviour creates a risk to health and safety; and
- There is a risk that the worker will continue to be bullied at work by that particular individual or group.
Bullying does not include reasonable management action carried out in a reasonable manner e.g. performance management and disciplinary processes.
What constitutes bullying?
From the above criteria, we can see that bullying cannot be a one-off occurrence but must constitute repeated behaviour. This behaviour must be ‘unreasonable’, which is an objective test determined through the eyes of a ‘reasonable person’, and also create a risk to the health and safety of the worker. This risk does not require actual harm to be suffered, just the possibility or chance of injury or loss.
In relation to what may constitute bullying behaviour, the Fair Work Commission has listed the following examples:
- aggressive and intimidating conduct;
belittling or humiliating comments;
spreading malicious rumours;
practical jokes or initiation;
exclusion from work-related events; and
unreasonable work expectations.
The bullying behaviour must also occur ‘at work’, which has been interpreted by the Full Bench of the Commission to mean any bullying behaviour that occurs while the worker is performing work [Bowker and Others v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others  FWCFB 9227]. This includes any activity authorised or permitted by the employer (for example, meal breaks and accessing social media at work), and extends beyond the physical workplace to include bullying behaviour that occurs at any time or location where the worker is authorised to perform work.
The ‘bullies’ themselves do not need to be workers or ‘at work’ at the time of bullying.
Risk of continued bullying
There is no time limit prescribed for the making of an application for an anti-bullying order. However, as the Commission can only make an order if there is a risk of continued bullying, a worker essentially loses their right to an order if they are no longer engaged at that workplace.
What orders can the Commission make to stop bullying?
Under the new anti-bullying laws, the Fair Work Commission can make any order considered appropriate to prevent the worker from being bullied in the future. The powers are broad- ranging and designed to be preventative.
By way of illustration, the Commission has made orders restricting contact and topics of conversation between workers. It has gone so far as to order that a person “not exercise on the balcony in front of, or in the vicinity of, the applicant’s desk between 8.15am and 4.15pm” [Applicant v Respondent (2014) 66 AILR 102-248].
The Commission cannot award compensation or make punitive orders (e.g. fines).
The anti-bullying laws are still relatively new and their impact on workplace behaviours can only be ascertained over time. What they do acknowledge and indeed reinforce, is the damaging impact of workplace bullying and the need to shine a light on what is often a covert and systemic practice.
If you think you have been bullied at work, or would like to discuss ways to best safeguard your workplace against claims and/or would like to discuss how these new anti-bullying laws impact your workplace, contact our Employment Law Team.