Bullying
The Fair Work Act 2019 (Cth) (Act) protects workers which includes employees, contractors and volunteers from workplace bullying by an individual or group of individuals who repeatedly behave unreasonably towards a worker or group of workers at work, with the behaviour creates a risk to health and safety.
Bullying can involve both direct and indirect behaviour such as:
- aggressive, intimidating or humiliating conduct;
- bad language or rudeness;
- teasing, practical jokes or spreading rumours;
- excluding from team activities;
- placing unreasonable expectations of an individuals’ work;
- withholding essential information from someone which is required for them to perform their duties.
What is not bullying?
When an incident occurs only once, then it is not bullying under the Act. It may however be harassment and depending on the conduct, it may contravene other laws. For example, sexual harassment if the conduct is sexual in nature.
Further, reasonable management action conducted in a reasonable manner does not constitute workplace bullying. For example, an employer conducting a genuine disciplinary process, proper performance management process, or providing lawful and reasonable directions to an employee will not be bullying if it is conducted in reasonable manner. For example, this could involve realistic timeframes to improve performance or complete a task.
Applications
If an employee alleges that they have been bullied, they can commence proceedings in the Fair Work Commission (Commission) for an order to stop bullying. Sometimes employees will use this application to stop a disciplinary process and any consequential findings from that disciplinary process.
When an application is made, the Commission will have regard to the employer’s bullying policy, whether the employee has first used the internal procedures under the bullying policy before making the application and if they have, the outcome of any investigation and findings.
Remedies
Under the Act, the Commission can make orders to stop bullying. That could include putting limitations on the interactions between the applicant and other employees or even the employer. However, the Commission cannot order that compensation be paid for the bullying conduct.
Further, an order can only be made if there is a risk of the bullying conduct repeating. If, for example, the employee resigns after they make the application, or the person against whom they have made the complaint leaves or works in another location, and the employee will have no further contract with that person, the Commission cannot make an order to stop bullying. Bulling behaviour may also give rise to contraventions of health and safety laws and may be a basis for compensation claims under workers compensation laws.
What should SME owners know about bullying?
As an employer, you have an obligation to take positive steps to prevent, minimise and eliminate the risks of bullying and harassment at work. It is critical for employers have clear bullying and harassment policies in place which includes a process on making a complaint including investigating the compliant. The policy must be communicated to workers and be easily accessible.
Some employers also offer bullying and harassment training regularly so workers can understand the policies and understand what conduct is reasonable and lawful behaviour, and what conduct is viewed as bullying.
Who is Employsure Law and how can we help?
Employsure Law is the partner law firm for Australia’s leading workplace relations consultancy company, Employsure. It provides litigation workplace law services to Employsure clients.
Employsure Law understands how the small business sector works and offers business owners high quality, cost-effective, practical legal advice and representation. Business owners can take comfort knowing that they are supported by an expert legal team if they are facing claims or litigation.
In its first year of operation, it was Employment Law Specialist Firm of the Year and its Head of Legal was a finalist for 2019 Workplace Relations Partner of the Year.
The dedicated legal team will support Employsure clients with advice and, if need be, representation in all aspects of claims or litigation.
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