False Bullying Allegations:
Are You Wrongly Accused?

Published: 16 July 2021
Published: 16 July 2021
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Get informed about your rights, responsibilities, and options.

If you are a business owner, executive or manager facing a false bullying allegation at work, you are likely feeling the weight of stress and concern about how it will end. Getting informed about your rights, responsibilities and options is essential whenever you face a workplace allegation. It is all the more important if the allegations are false, unfair or vexatious. Delays in getting informed and obtaining the right advice can lead to unnecessary mistakes, reputational harm and risks to economic security.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature if you want to learn more about workplace bullying allegations, particularly as it relates to people who are the subject of false or unfair accusations.

If you face an unfair bullying complaint, contact Anderson Legal. This firm provides expert advice and representation for people needing assistance to defend themselves against unjust accusations. Andrew Anderson is independently recommended as being among the leading white-collar crime, corporate crime & regulatory investigations lawyers in Australia. He has substantial experience in assisting individuals to respond to workplace bullying allegations.

Fundamentals of workplace bullying complaints

What is the definition of ‘bullying’?

If you have been unfairly or falsely accused of bullying at work, 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;
    2. [48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

      Due to difficulty in defining a boundary of what is ‘at work’, it was stated by the Full Bench of the Fair Work Commission in the case cited above in paragraph [52] that the meaning should be developed “on a case by case basis”. In many cases, there will be no real issue about whether the alleged bullying behaviour occurred ‘at work’, however, it is important to understand that where facts fall at the margins of what may be work, this element may assume significance.

      2. Meaning of ‘individual’ or ‘group of individuals’

      In Mac v Bank of Queensland Limited and Others [2015] FWC 774, it was stated that there was nothing to indicate that the ordinary meaning of ‘individual’ (ie, natural persons) was displaced. Importantly, there is no need for the individual or group of individuals engaged in bullying behaviours need be colleagues or related workers. In Bowker and Others v DP World Melbourne Limited T/A DP World and Others [2014] FWCFB 9227 it was stated in paragraph [31] of the judgment:

      [31] … The individuals engaging in the unreasonable behaviour need not be workers, for example they could be customers of the business or undertaking in which the applicant works. Nor do the relevant statutory provisions contain any requirement for these individual(s) to be ‘at work’ at the time they engage in the unreasonable behaviour which the applicant contends constitutes bullying.

      While many people typically think of workplace bullying as involving conflicts or issues between colleagues, the law actually applies far more broadly.

      3. Meaning of ‘unreasonable behaviour’

      The word ‘unreasonable’ is used as a legal test in numerous contexts, often referred to as the ‘reasonable person’ test. In the case of Re Ms SB [2014] FWC 2104, it was stated at paragraph [43]:

      [43] ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.

      From the above, it is apparent that the test is considered from an objective standpoint. Rather than what a person alleging bullying subjectively believes, allegations must be assessed from the standpoint of a reasonable person.

      So what happens if someone is particularly sensitive? The Fair Work Commission has highlighted the need to understand the realities of workplaces and the fact that bullying does not occur simply because someone feels hurt, embarrassed or humiliated. In Harris v WorkPac Pty Ltd [2013] FWC 4111 at paragraph [73], it was stated:

      [73] While the Commission does not and should not endorse the view that “anything goes” at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with any vigour and relates to incidents which occurred some time ago. In my view, the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities – not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is “guilty of bullying” and “gross misconduct”.

      If you are facing a workplace bullying complaint, it is important to consider the meaning of ‘reasonable management action’ and its impact on what may be classified as unreasonable behaviour.

      4. Meaning of ‘repeated behaviour’

      For an individual or group of individuals to repeatedly behave unreasonably, it is necessary that there be more than one occurrence of workplace bullying that can be specified. It may refer to a range of behaviours over a period of time. In Mac v Bank of Queensland Limited and Others [2015] FWC 774, it was confirmed that it is not necessary for the same specific acts of bullying to be repeated for this element to be satisfied.

      5. Meaning of ‘creates a risk to health and safety’

      The meaning of the phrase ‘creates a risk to health and safety’ was concisely explained by the Fair Work Commission (Commissioner Hampton) in Re Ms SB [2014] FWC 2104 at paragraphs [44] – [45]:

      [44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

      [45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.

      Footnotes omitted.

      While employers may have a duty to employees to protect them from workplace bullying, it is apparent from this law that not every instance of repeated unreasonable behaviour will create a risk to health and safety. This is borne out in cases before the Fair Work Commission where it has been found that any unreasonable behaviour that did occur did not create a risk to health and safety. An example of this may be seen in the case of Re Ms SB [2014] FWC 2104, in which it was found (amongst other things) that the limited degree of unreasonable behaviour found to have occurred did not create a risk to health and safety.

      What is ‘reasonable management action’?

      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 by no means uncommon for performance management issues to lead to allegations of workplace bullying. So, for those people, in particular, it is important to understand that ‘reasonable management action’ can be a complete answer to workplace bullying allegations.

      For anybody who may face a workplace investigation into bullying complaints, the Fair Work 2009 (Cth) specifically excludes ‘reasonable management action’ from the concept of workplace bullying.

      When is a worker bullied at work?

      1. 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.

      Examples: bullying vs. reasonable management action

      Seeing examples of what may be bullying as opposed to what may be reasonable management action may help to illustrate the legal concepts.

      First, with respect to bullying, in Mac v Bank of Queensland Limited and Others [2015] FWC 774, the Fair Work Commission gave a list of of the features at least some of which one might expect to see in a case of unreasonable behaviour that constitutes workplace bullying (see paragraph [99]):

      [99] … My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination…

      Next, in relation to reasonable management action, it was said in R GC [2014] FWC 1231 at paragraph [56]:

      [56] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

      • management actions do not need to be perfect or ideal to be considered reasonable;
      • a course of action may still be ‘reasonable action’ even if particular steps are not;
      • to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
      • any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
      • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.
      Footnotes omitted.

      Many managers facing false bullying allegations at work may feel that an underperforming employee has sought to deflect attention from their own issues by making a bullying complaint. By keeping a clear focus on what allegations are plainly false (ie, invented), and those that may be bound up in reasonable management action, it is easier to identify how to effectively respond.

      Prior to making any response to a complaint, it is important to understand your rights, responsibilities and options so as to know how to effectively respond to false workplace bullying allegations.

      Fundamental rights and responsibilities

      Respondent’s rights following bullying complaints

      Individuals falsely accused of bullying at work have a number of rights or are owed a number of obligations by their employer. Understanding these rights can be important in understanding how a response to a complaint may best be handled.

      1. Procedural fairness

      Procedural fairness is essential for anybody facing a workplace bullying complaint. It is particularly important to anybody unfairly or falsely accused of bullying in the workplace. Procedural fairness applies to all aspects of a complaint or grievance, including the following:

      • Allegations must be properly particularised and detailed to ensure the respondent understands the accusations they face and what is the scope of any investigation that may take place.
      • All evidence that is relevant, which either supports or contradicts the allegations, should be gathered and considered.
      • Real or perceived biases, prejudgment and conflicts of interest must be absent from any investigator or decision-maker.
      • Investigators and decision-makers must act promptly to avoid unfair prejudice due to delays.
      • Potential consequences (ie, disciplinary action) ought to be identified for the respondent.

      It is important that a person facing a workplace bullying complaint and who is subject to a formal investigation should be afforded the opportunity to comment or respond to evidence that is inconsistent with or contradictory to their own evidence. It is not uncommon to see a respondent to an investigation not be afforded procedural fairness, which can result in adverse disciplinary decisions and possible termination of employment, particularly regarding workplace bullying allegations.

      If you are the subject of a workplace investigation looking into bullying allegations you believe or know to be unfair, wrong or vexatious, the only purpose you have is to clear your name. Understanding the fundamental obligation of an employer to afford employees procedural fairness in facing an allegation should help to shape your response and adapt it to the particular situation you may face.

      2. Confidentiality rights

      Given the reputational risks that complaints of workplace bullying create, employers have a duty to maintain confidentiality during a workplace investigation. It is, for this reason, it is quite common to see directions issued to staff who may allege, or are allegedly witnesses to, workplace bullying to observe confidentiality obligations as part of a workplace investigation. Failures to appropriately manage the confidentiality of a workplace investigation can result in successful claims against an employer by a respondent, particularly if the breach of duty causes a psychiatric injury to the worker.

      While confidentiality obligations may create a sense of isolation at times, they can also act as a protection for people falsely accused of workplace bullying. Generally, if a person (including a complainant) fails to observe their confidentiality obligations, they can become subject to disciplinary action.

      3. Health and safety rights

      Employers have a duty of care for employees who are required to deal with a workplace investigation into bullying allegations. This includes a duty to protect the health and safety of employees who face complaints as part of a workplace investigation. An employer may be liable for injuries caused as a result, as was the case in Hayes v Queensland [2016] QCA 191, in which Dalton J stated at paragraph [110]:

      In an appropriate case a duty will arise not because the work, workload, or system of work itself is creating problems, but because there is unhappiness within the workplace, not of the employer’s making, but of which the employer is aware.

      Hayes v Queensland [2016] QCA 191 concerned four employees who faced allegations of bullying and harassment from their colleagues. While the allegations were unsubstantiated following a lengthy workplace investigation, claims were brought against the employer (State of Queensland) for breaching its duty of care by failing to provide adequate support during the process. It was found that the duty of care owed to the employees facing complaints had been breached and that it had caused psychological injuries. As was observed by Dalton J at paragraph [173]:

      In Johnson v Unisys Ltd the speeches in the House of Lords recognised that in modern times it is generally recognised and understood that “work is one of the defining features of people’s lives” and that workplace stress can give rise to recognisable psychiatric illness.

      Citation omitted.

      A failure to take ensure a timely investigation and determination of a complaint within the workplace may also be a breach of the duties of care owed to employees: see Robinson v Queensland [2017] QSC 165.

      There is an important difference between providing a safe system of work, including support for an employee during a workplace investigation, and a safe system of investigation. While the former may be a duty owed by employers to employees, the latter is not generally regarded as a right, as was held in Govier v Uniting Church [2017] QCA 12.

      While a person facing an investigation into workplace bullying allegations may seek advice from a lawyer or union representative at any stage, having a lawyer or union representative act beyond the role of a support person during an interview about allegations may not be permitted to occur.

      One of the key roles a lawyer or union representative plays during a workplace investigation is to provide advice and guidance about the process, particularly when the allegation is false or it is thought the conduct of workplace investigation is unfair. A lawyer or union representative may be able to take action to ensure relevant evidence is gathered, appropriate adjustments are made, or unfair investigations are stopped.

      5. Privilege against self-incrimination

      The privilege against self-incrimination is an important legal principle that is deeply rooted in our legal system. If you face complaints of workplace bullying, it is possible (but by no means inevitable) that such allegations could amount to criminal conduct.

      Privilege against self-incrimination means that you cannot be compelled to answer questions that may show you have committed a crime if the answers that may be given may place you in real and appreciable danger of conviction

      The protection of the privilege against self-incrimination is more complicated with respect to workplace allegations than it is in purely criminal investigations. The High Court of Australia has stated that the privilege is capable of applying to questions asked by employers of employees: Police Service Board v Morris (1985) 156 CLR 397. So the privilege against self-incrimination may apply in the employment sphere if there is a real and appreciable danger that you would incriminate yourself by answering particular questions in an interview: Grant v BHP Coal Pty Ltd [2017] FCAFC 42.

      Navigating issues such as this is often complex and highlights the importance of people getting early, authoritative advice from an experienced employment lawyer when facing issues of this nature.

      6. Reasonable accommodations

      Employers should ensure reasonable accommodations are afforded to employees who may suffer from a disadvantage that makes their ability to respond to an allegation more difficult. This may be due to a particular characteristic, disability or illness suffered by the respondent.

      Illnesses are a common issue encountered following a bullying complaint being made. The employer or workplace investigator should take steps to understand, including through medical evidence, whether accommodations are needed and if so, what they may be.

      It can be an error for a workplace investigator or decision-maker to not afford someone facing allegations a support person during any meetings or interviews that take place. For example, in Sheng He v Peacock Bros Pty Ltd & Wilson Lac v Peacock Bros Pty Ltd [2013] FWC 7541, an unfair dismissal claim was successful when it was found that it was unfair due to a support person not being present during a disciplinary meeting in addition to other flaws in the investigation process.

      Respondent’s responsibilities following bullying complaints

      When a complaint or grievance is made, it is important to not only consider what rights you may have, but also responsibilities. These responsibilities or obligations may arise from the duties employees owe employers generally under laws relating to employment contracts, specific laws, or the policies and procedures an employee may be expected to adhere to in a given workplace.

      Employees have a general responsibility to comply with reasonable directions of their employer, including conditions imposed as part of a workplace investigation into a bullying allegation (even if the allegation is false).

      Following a workplace bullying complaint being made, a respondent will generally have the following obligations with respect to any investigation or response that may be required:

      • Act honestly and frankly;
      • Maintain confidentiality as reasonably required by the workplace investigation.
      • Not take adverse action against a complainant or witness; and,
      • Participate in a workplace investigation into the allegations.

      There are exceptions to these general obligations, such as when a person refuses to answer questions on the basis of the privilege against self-incrimination and sometimes with respect to confidentiality issues. It is the reason why it is always necessary to take a tailored approach to the response to be given to any allegations about workplace bullying.

      If you are facing a bullying allegation and fail to uphold your responsibilities as part of it being investigated, you may jeopardise the effectiveness of any response you may provide to clear your name. Obtaining early and authoritative advice from an experienced employment lawyer can assist you to understand your rights, obligations and options.

      Responding to false bullying complaints

      Steps to providing effective responses

      Whenever you are faced with a legal question, the quickest way to find an answer to it is to ask somebody who already knows. Following a bullying complaint, particularly one that is unfairly made, there is no single answer as to how to best respond if you are the subject of it.

      While there are methods or steps that may be followed to try to improve the effectiveness of any response to allegations, in truth all responses must be adapted to the specific needs of the case. One method is to analyse the options available through a series of steps, specifically:

      1. Identify the issue (issue)
      2. Identify the legal framework (rules)
      3. Apply the law to the specific evidence relevant to the issue (application)
      4. Decide the appropriate response for your case (decision)

      1. Issue

      In order to provide an effective response following being falsely accused of bullying at work, you need to be afforded sufficient particulars of the complaint in order to understand what you are facing and have a reasonable opportunity to answer them. In some cases, this will extend to being provided with some or all of the evidence relevant to the allegation.

      What meets the needs of procedural fairness is not fixed. For that reason, it is not uncommon that a lawyer representing a respondent facing a workplace investigation seeks further and better particulars in respect of the allegations or disclosure of evidence that may be relevant to address the issues.

      2. Rules

      It is surprising how frequently employers and workplace investigators overlook key aspects of the legal framework relevant to allegations of workplace bullying. Why that can matter is the legal consequences that flow from the investigation findings for a respondent may be overturned or altered, such as through unfair dismissal claims, general protections claims or action taken in respect of a breach of contract.

      Understanding the legal framework generally is necessary to understand the strengths and weaknesses of a particular allegation. A simple example is the exclusion of reasonable management action from the meaning of workplace bullying under the Fair Work Act 2009 (Cth). If you were a manager facing a bullying complaint relating to your performance management of a worker, you may not understand how central that rule may be to your answer to the allegations.

      In representing a respondent who is unfairly or falsely accused of bullying at work, identifying the legal principles and other rules that apply to the situation forms a critical aspect of the work, as it frames the advice about how the law may apply to the facts.

      3. Application

      By understanding the issue and the legal framework, you should be able to identify what facts or evidence are relevant to answering the allegation. If you are facing a workplace bullying complaint you know or believe to be unfair, understanding these matters affords you an opportunity to ensure you can provide a fulsome response.

      A respondent to an allegation may simply take the view that all they need to do is answer questions truthfully and let the process take its course. This view places full trust in the fairness of the process commenced by the employer, which may or may not involve an independent investigator. In truth, such an approach may leave a person vulnerable to unnecessary mistakes, reputational harm and risks to employment security.

      Properly understanding the issues and the rules that apply allows people to proactively make decisions knowing their rights and obligations. For instance, a respondent who fears the complaint may be substantiated (whether fairly or unfairly) may wish to resolve the issue without an investigation needing to reach a conclusion. They may no longer wish to continue in their current job due to the issues that have arisen. This may mean a lawyer may be engaged to attempt to resolve issues through end of contract negotiations. Alternatively, a respondent may vehemently wish to defend themselves against the allegations, but require further and better particulars before being able to properly address them.

      A person who understands their rights, responsibilities and options is far better equipped to make a decision that best suits their interests over the person who simply follows a process without such understanding.

      4. Decision

      Simply put, different people will draw different conclusions about how best to respond to workplace bullying allegations. In most cases, there will be multiple ways to respond and the decision will be made according to the personal priorities of the individual.

      When a process does not result in the findings you thought it would, or you end up being disciplined or losing your job as a result of a complaint, knowing what options you had can still assist. It may position you to know whether you have the ability to challenge the fairness of the investigation, disciplinary action or dismissal, such as by filing a claim in the Fair Work Commission. The sooner a person obtains legal advice, the earlier they will be able to structure their response to achieve their ultimate aims, whatever they may be.

      Challenging the fairness of an investigation

      It is not uncommon for people to have misgivings about the fairness of a workplace investigation they may be subject to, yet still ‘hope for the best’ in the belief that it may be held against them if they challenge issues during the investigation. While this is an understandable thought, it can backfire. Failing to make a timely objection to something may be taken into account as being the product of disappointment with the process only in the aftermath.

      Deciding to raise objections to aspects (or the entirety) of a workplace investigation requires careful consideration. However, where the concern relates to something that may adversely affect the conclusions reached by an investigator, it can be important to consider what impact it may have on the ultimate outcomes. Examples of instances where an investigation may be challenged include the following:

      • Bias or perceptions of bias on the part of the investigator;
      • Investigators acting inconsistently with the law or procedures relevant to the particular investigation;
      • Allegations that are general, vague or do not disclose their basis; and,
      • Failure to disclose key evidence or give notice about possible adverse findings.

      Generally, though not always, the longer a process goes on the harder it is to seek alterations to it. For that reason, anybody who holds concerns about the fairness of an investigation into workplace bullying allegations ought to seek advice from an experienced employment lawyer at the earliest opportunity.

      Confidential negotiations and settlements

      Confidential negotiations regularly occur between parties during a dispute. Generally speaking, attempting to settle a disputed issue through negotiation, which can avoid litigation and claims being filed, may be in the interests of all concerned parties.

      Invariably, employers and employees who reach a settlement enter into a deed of agreement, which is often the subject of confidentiality provisions, recording the resolution of all disputes that may be resolved by law and on what terms.

      It is true that “work is one of the defining features of people’s lives”. For this very reason, many people initially face bullying allegations wishing to maintain their position and defend their conduct. The realisation of delays in investigations, the emotional difficulties and stress of dealing with such allegations, and challenging adverse findings through court proceedings may see people change their mind about trying to resolve the issue by negotiation.

      Disputes following bullying accusations

      There may be a range of disputes that following investigations or decisions in relation to workplace bullying complaints. Often, when adverse findings are made or disciplinary action is taken, people seek to know their options to correct the errors they see or can sense. If you have been falsely accused of bullying at work, you may wish to dispute any adverse findings made against you, given the unfair impacts such findings may have to your reputation and livelihood.

      Disclosure of the investigation report

      Respondents are not always given a copy of the investigation report, nor are they always provided with an opportunity to comment on contradictory evidence or potential adverse findings. In some cases, this can lead to disputes, sometimes for good reason. Experience has shown that investigators and decision-makers do get things wrong, which can lead to unfair outcomes. Examples of the types of disputes that can occur over investigation reports include:

      • The evidence relied upon to support certain findings is unstated or unclear;
      • The reasoning process for certain findings is unstated or unclear;
      • The report overlooks or ignores key credibility or reliability issues;
      • Conflicts of interest have not been managed appropriately; and,
      • Failure to disclose the full investigation report and evidence gathered.

      If you find yourself disputing the outcome of an investigation report, it is possible to dispute it in a number of ways, such as by commencing an unfair dismissal application, general protections claim or an action for breach of contract.

      Disputed disciplinary decisions

      If you are subject to notification of a potential disciplinary issue or are under investigation for a workplace bullying issue, you may face disciplinary action that you dispute:

      Some disputes may be resolved by direct discussions or negotiations with your employer or their lawyers. Others can only be resolved by claims in courts, tribunals or commissions. Understanding your options to dispute decisions about your employment and reputation is essential to ensuring you do not face an outcome that is harsh, unjust or unreasonable.

      Claims in the Fair Work Commission, etc.

      Commencing a claim in any jurisdiction is a significant step. While it does not necessarily stop negotiations or alternative resolutions to a disputed issue, it necessarily involves adversarial action that – if not resolved – can take weeks, months and sometimes even years to end. Before commencing any claim, such as an unfair dismissal claim in the Fair Work Commission, obtaining advice from an experienced employment lawyer can ensure you get the guidance necessary to know how to maximise your prospects of successfully litigating a claim.

      False Workplace Bullying Allegations - Australia