Workplace Bullying Issue?
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What is workplace bullying?

If you are facing a workplace investigation into bullying allegations, it is essential to understand the definition of ‘bullying’ as defined in the Fair Work Act 2009 (Cth). It is the law that applies to most employers and employees in Australia.

The definition of when a worker is bullied at work is found in section 789FD(1) of the Fair Work Act 2009 (Cth). It states:

When is a worker bullied at work?

1. A worker is bullied at work if:
   1. while the worker is at work in a constitutionally-covered business:
      • an individual; or
      • a group of individuals;
   repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
   
   2. that behaviour creates a risk to health and safety.

The definition of ‘bullying’ in the Fair Work Act 2009 (Cth) has a number of key elements:

• First, the worker must be “at work in a constitutionally-covered business”. The meaning of ‘constitutionally-covered business’ is explained in section 789FD(3) of the Fair Work Act 2009 (Cth). Most workers who work for ordinary businesses will be covered by this definition.
• Second, the bullying must be by an individual or group of individuals.
• Third, the behaviour alleged to be bullying must be unreasonable.
• Fourth, the behaviour alleged to be bullying must be repeated.
• Fifth, the behaviour alleged to be bullying must create a risk to health and safety.

If any element cannot be established, then the allegation of bullying fails.

What is reasonable management action?

The Fair Work 2009 (Cth) specifically excludes ‘reasonable management action’ from what can be classified as “workplace bullying”:

When is a worker bullied at work?

1. …
2. To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

Reasonable management action may involve performance management and appraisals, changes to working arrangements, investigating complaints and disciplinary action. As may be evident, any of those actions may affect the rights or interests of a worker who may feel, rightly or wrongly, they are being unfairly targeted. It is often in that context a workplace bullying complaint is made against an executive or manager.

Many people who face bullying complaints in the workplace are managers in one form or another. However described, executives, managers, or small business owners have as part of their role the task of managing the conduct and performance of other workers. It is not uncommon for performance management activity to be characterised as bullying. So, for executives and managers, it is critical to understand that ‘reasonable management action’ is a complete answer to workplace bullying allegations.

How common is workplace bullying?

A 2020/21 study (Australian Workplace Barometer Fact Sheet) found that the prevalence of bullying in the workplace was 8.6%, which was down from 9.7% in 2014/15. This was reported to be very high by international standards.

With respect to bullying and harassment, the 2020/21 study found the behaviours most frequently experienced as bullying behaviours were verbal abuse and humiliation:

Bullying in the workplace does occur, in all industries. Complaints of bullying that are false or unfair also happen. It is not always a case of the accuser lying about events. People can wrongly label something as “bullying” when it is in fact “reasonable management action”. The context of an event or action may be misunderstood. However, malicious allegations can and do occur.

Executives and managers may face false or unfair allegations from their management decisions. Employees may try to cover their poor performance by claiming their manager is a bully. This can make investigations into workplace bullying allegations complex and contested. Obtaining early legal advice can benefit employers, executives, and employees.

Does bullying differ from harassment?

While workplace bullying must be based on repeated conduct, workplace harassment can occur from a single incident. People often use the terms ‘bullying’ and ‘harassment’ interchangeably, although harassment is generally a reference to unwanted behaviours that offend, humiliate or intimate a person based on a personal attribute. Behaviour that targets a person based on their personal attributes, such as age, gender, or race, may also constitute discrimination.

What is workplace bullying?

If you are facing a workplace investigation into bullying allegations, it is essential to understand the definition of ‘bullying’ as defined in the Fair Work Act 2009 (Cth). It is the law that applies to most employers and employees in Australia.

The definition of when a worker is bullied at work is found in section 789FD(1) of the Fair Work Act 2009 (Cth). It states:

When is a worker bullied at work?

1. A worker is bullied at work if:
   1. while the worker is at work in a constitutionally-covered business:
      • an individual; or
      • a group of individuals;
   repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
   
   2. that behaviour creates a risk to health and safety.

The definition of ‘bullying’ in the Fair Work Act 2009 (Cth) has a number of key elements:

• First, the worker must be “at work in a constitutionally-covered business”. The meaning of ‘constitutionally-covered business’ is explained in section 789FD(3) of the Fair Work Act 2009 (Cth). Most workers who work for ordinary businesses will be covered by this definition.
• Second, the bullying must be by an individual or group of individuals.
• Third, the behaviour alleged to be bullying must be unreasonable.
• Fourth, the behaviour alleged to be bullying must be repeated.
• Fifth, the behaviour alleged to be bullying must create a risk to health and safety.

If any element cannot be established, then the allegation of bullying fails.

What is reasonable management action?

The Fair Work 2009 (Cth) specifically excludes ‘reasonable management action’ from what can be classified as “workplace bullying”:

When is a worker bullied at work?

1. …
2. To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

Reasonable management action may involve performance management and appraisals, changes to working arrangements, investigating complaints and disciplinary action. As may be evident, any of those actions may affect the rights or interests of a worker who may feel, rightly or wrongly, they are being unfairly targeted. It is often in that context a workplace bullying complaint is made against an executive or manager.

Many people who face bullying complaints in the workplace are managers in one form or another. However described, executives, managers, or small business owners have as part of their role the task of managing the conduct and performance of other workers. It is not uncommon for performance management activity to be characterised as bullying. So, for executives and managers, it is critical to understand that ‘reasonable management action’ is a complete answer to workplace bullying allegations.

How common is workplace bullying?

A 2020/21 study (Australian Workplace Barometer Fact Sheet) found that the prevalence of bullying in the workplace was 8.6%, which was down from 9.7% in 2014/15. This was reported to be very high by international standards.

With respect to bullying and harassment, the 2020/21 study found the behaviours most frequently experienced as bullying behaviours were verbal abuse and humiliation:

Bullying in the workplace does occur, in all industries. Complaints of bullying that are false or unfair also happen. It is not always a case of the accuser lying about events. People can wrongly label something as “bullying” when it is in fact “reasonable management action”. The context of an event or action may be misunderstood. However, malicious allegations can and do occur.

Executives and managers may face false or unfair allegations from their management decisions. Employees may try to cover their poor performance by claiming their manager is a bully. This can make investigations into workplace bullying allegations complex and contested. Obtaining early legal advice can benefit employers, executives, and employees.

Does bullying differ from harassment?

While workplace bullying must be based on repeated conduct, workplace harassment can occur from a single incident. People often use the terms ‘bullying’ and ‘harassment’ interchangeably, although harassment is generally a reference to unwanted behaviours that offend, humiliate or intimate a person based on a personal attribute. Behaviour that targets a person based on their personal attributes, such as age, gender, or race, may also constitute discrimination.

What is workplace bullying?

If you are facing a workplace investigation into bullying allegations, it is essential to understand the definition of ‘bullying’ as defined in the Fair Work Act 2009 (Cth). It is the law that applies to most employers and employees in Australia.

The definition of when a worker is bullied at work is found in section 789FD(1) of the Fair Work Act 2009 (Cth). It states:

When is a worker bullied at work?

1. A worker is bullied at work if:
   1. while the worker is at work in a constitutionally-covered business:
      • an individual; or
      • a group of individuals;
   repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
   
   2. that behaviour creates a risk to health and safety.

The definition of ‘bullying’ in the Fair Work Act 2009 (Cth) has a number of key elements:

• First, the worker must be “at work in a constitutionally-covered business”. The meaning of ‘constitutionally-covered business’ is explained in section 789FD(3) of the Fair Work Act 2009 (Cth). Most workers who work for ordinary businesses will be covered by this definition.
• Second, the bullying must be by an individual or group of individuals.
• Third, the behaviour alleged to be bullying must be unreasonable.
• Fourth, the behaviour alleged to be bullying must be repeated.
• Fifth, the behaviour alleged to be bullying must create a risk to health and safety.

If any element cannot be established, then the allegation of bullying fails.

What is reasonable management action?

The Fair Work 2009 (Cth) specifically excludes ‘reasonable management action’ from what can be classified as “workplace bullying”:

When is a worker bullied at work?

1. …
2. To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

Reasonable management action may involve performance management and appraisals, changes to working arrangements, investigating complaints and disciplinary action. As may be evident, any of those actions may affect the rights or interests of a worker who may feel, rightly or wrongly, they are being unfairly targeted. It is often in that context a workplace bullying complaint is made against an executive or manager.

Many people who face bullying complaints in the workplace are managers in one form or another. However described, executives, managers, or small business owners have as part of their role the task of managing the conduct and performance of other workers. It is not uncommon for performance management activity to be characterised as bullying. So, for executives and managers, it is critical to understand that ‘reasonable management action’ is a complete answer to workplace bullying allegations.

How common is workplace bullying?

A 2020/21 study (Australian Workplace Barometer Fact Sheet) found that the prevalence of bullying in the workplace was 8.6%, which was down from 9.7% in 2014/15. This was reported to be very high by international standards.

With respect to bullying and harassment, the 2020/21 study found the behaviours most frequently experienced as bullying behaviours were verbal abuse and humiliation:

Bullying in the workplace does occur, in all industries. Complaints of bullying that are false or unfair also happen. It is not always a case of the accuser lying about events. People can wrongly label something as “bullying” when it is in fact “reasonable management action”. The context of an event or action may be misunderstood. However, malicious allegations can and do occur.

Executives and managers may face false or unfair allegations from their management decisions. Employees may try to cover their poor performance by claiming their manager is a bully. This can make investigations into workplace bullying allegations complex and contested. Obtaining early legal advice can benefit employers, executives, and employees.

Does bullying differ from harassment?

While workplace bullying must be based on repeated conduct, workplace harassment can occur from a single incident. People often use the terms ‘bullying’ and ‘harassment’ interchangeably, although harassment is generally a reference to unwanted behaviours that offend, humiliate or intimate a person based on a personal attribute. Behaviour that targets a person based on their personal attributes, such as age, gender, or race, may also constitute discrimination.