Have you been unfairly accused of bullying at work?

Unfair Workplace Bullying Allegations

The idea that a bullying complaint could be unfair or unjust is a difficult topic for many people.

The thought that such a serious allegation could be made – and yet be wrong – makes people uncomfortable. For this reason, anybody facing a workplace bullying complaint faces a real disadvantage. Yet, it can be overcome.

Taking the time to understand your options and how to respond can be a good first step. However, as with any legal issue, there is no substitute for getting professional legal advice as early as possible. Without getting informed or getting advice, people can sell themselves short by not understanding all that can be done.

Why unfair allegations may arise

Workplace bullying does occur. However, 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”.

The context of an event or action may be misunderstood. Also, the conduct may fairly be characterised as “reasonable management action”. The Fair Work 2009 (Cth) specifically excludes “reasonable management action” from what can be called workplace bullying.

Reasonable management action may involve many common, albeit contentious, acts by executives and managers:

• performance appraisals
• performance management
• changes to working arrangements
• investigating complaints
• instigating disciplinary processes

Many management actions 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.

Malicious complaints can occur. In such cases, employers can terminate an employee’s employment for making a false allegation of workplace bullying, as was shown in the case of Hanrick v Meridian Lawyers [2018] FWC 3256. However, there are risks for employers in taking action against employees who make complaints of being bullied, as it can appear as victimisation, which gives rise to further legal risks.

There is no ‘template’ response to bullying complaints

There are many different approaches a person may take when faced with a workplace bullying complaint. The reasons for this are obvious. Not all allegations are the same and individual circumstances need to be considered.

Bullying and harassment in the workplace can take different forms and the responses may differ depending on what is alleged. A 2020/21 study (Australian Workplace Barometer Fact Sheet) on bullying and harassment found the behaviours most frequently described as bullying are being sworn or yelled at while at work and being humiliated in front of others:

The varied ways a bullying allegation may arise means there is no ‘one-size-fits-all’ approach to responding.

Understanding how best to respond begins with having an in-depth understanding of three issues:

1. The legal framework
2. Response options
3. Contesting unfair allegations

These three issues are outlined below.

Before going further, it is important to acknowledge that every legal issue is unique. The information provided here cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the options available in responding to a workplace bullying allegation.

The legal framework for workplace bullying

It is essential to understand the legal framework of workplace bullying when facing such an allegation. It provides the foundation to determine what ‘workplace bullying’ is and is not. Once the term itself is defined, it is possible to move on to the legal duties and consequences that flow from workplace bullying issues.

In addressing the legal framework for workplace bullying below, the following issues are considered:

• What is ‘workplace bullying’?
• What is ‘reasonable management action’?
• Bullying vs reasonable management action
• Legal consequences of workplace bullying

Without appreciating these issues, people are ill-equipped to respond to a workplace bullying allegation against them or to understand how others may deal with the issue. It is a mistake to think the legal framework merely relates only to whether the law says something is or isn’t bullying. It is more important than that. By understanding the legal framework, you can better understand the possible issues that are relevant, which may inform you about the legal interests or concerns others may hold and that may factor into their thinking.

What is ‘workplace bullying’?

The term ‘workplace bullying’ does not have a universally accepted meaning, and so it is always necessary to ensure the definition you are working with is the applicable one.

In Australia, if you are facing a workplace investigation, or have been issued a show cause notice, it is likely the definition of ‘bullying’ as defined in the Fair Work Act 2009 (Cth) will be relevant to you. 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 a typical business will be covered by this definition and so most of the time this element will focus on whether the worker was at work.
• Second, the bullying must be by an individual or group of individuals. The word ‘individual’ generally refers to a natural person, rather than a corporate entity, unless there is a clear intention to the contrary.
• 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. For that reason, each element should be considered in some greater depth.

1. Meaning of ‘while the worker is at work’

The meaning of ‘worker’ covers a wide range of people, but not everyone. For example, in the case of Glass [2023] FWC 1126, the Fair Work Commission found that the applicant was not a ‘worker’ and therefore dismissed his application for a stop bullying order. Members of the Australian Defence Force are specifically excluded from the meaning of ‘worker’.

The meaning of the term “while the worker is at work” was considered by the Full Bench of the Fair Work Commission in Bowker and Others v DP World Melbourne Limited T/A DP World and Others [2014] FWCFB 9227 at paragraphs [48] – [51]. It was stated in paragraph [48] of the judgment:

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 in paragraph [52] of the same decision 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 occurred ‘at work’. However, in some cases at the margins, it 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’ (i.e., natural persons) was displaced. Importantly, there is no need for the individual or group of individuals that engaged in the bullying to 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:

… 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 Ms SB [2014] FWC 2104, it was stated in paragraph [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 in paragraph [73], it was stated:

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 an executive or manager who has been accused of workplace bullying, it may be important to consider the interaction between the terms ‘unreasonable behaviour’ and ‘reasonable management action’.

4. Meaning of ‘repeated behaviour’

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 in Ms SB [2014] FWC 2104 in paragraphs [44] – [45]:

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.

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 have a duty to employees to protect them from workplace bullying, it is apparent from this element 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 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’ is a complete answer to workplace bullying allegations.

For anybody who may face a workplace investigation into bullying complaints, section 789FD(2) of the Fair Work 2009 (Cth) specifically excludes ‘reasonable management action’ from the concept of 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.

Bullying vs reasonable management action

Seeing examples of what may be bullying as opposed to what may be reasonable management action can help to illustrate the legal concepts or definitions given to words.

First, with respect to bullying, in Mac v Bank of Queensland Limited and Others [2015] FWC 774, the Fair Work Commission outlined a list 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]):

… 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 GC [2014] FWC 1231 in paragraph [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)

For executives and managers accused of workplace bullying, understanding the context in which the word ‘reasonable’ is used is critical if ‘reasonable management action’ is relevant to contesting a bullying allegation.

Legal consequences of workplace bullying

There are a number of potential legal consequences that can follow from workplace bullying, including:

• Workplace disciplinary processes
• Professional disciplinary action
• Orders to stop bullying
• Civil claims
• Criminal charges

Workplace disciplinary processes

Most workplaces will have specific policies in relation to bullying and harassment. These policies can help to outline what is and what is not acceptable behaviour in the workplace, as well as set out procedures if grievances or complaints are made.

Before any disciplinary action is taken, generally a respondent is given an opportunity to respond to any allegation, such as:

• during a workplace investigation
• in a formal meeting
• by replying to a ‘show cause’ letter

If a respondent is not afforded procedural fairness as part of any investigation or disciplinary process, they may be able to take action against their employer. Disciplinary action for workplace bullying involve anything up to termination of employment.

Professional disciplinary action

Some professions have specific rules that prohibit workplace bullying. As an example, rule 42 of the Australian Solicitors Conduct Rules prohibits a solicitor from engaging in workplace bullying in the course of practice. A breach of rule 42 exposes a solicitor to professional disciplinary action. Other professions have similar professional rules that prohibit workplace bullying. For this reason, individuals accused of workplace bullying need to be mindful that the accusation can have consequences beyond standard workplace disciplinary processes.

Orders to stop bullying

Part 6-4B of the Fair Work Act 2009 (Cth) deals with workers who are bullied at work, and empowers the Fair Work Commission to make orders to stop bullying. The orders are preventative in nature, meaning orders for compensation are not available for applications of this kind.

A worker who feels they have been bullied and is concerned it may continue can apply for an order to stop bullying with the Fair Work Commission. Orders to stop bullying may be made against employers, managers, co-workers, and others connected to a workplace. In making an order to stop bullying under section 789FF, the Fair Work Commission will seek to protect the worker from bullying and may make orders to enable the return of normal working relationships.

If someone is subject to an order to stop bullying and they contravene it, they are in breach of section 789FG, which exposes them to a penalty that may be imposed by a court.

It is important to note that if a person makes an application for a stop bullying order under section 789FC of the Fair Work Act 2009 (Cth), action may also be taken under work health and safety laws against a corporate entity or individual.

Civil claims

A worker who is bullied may be able to bring a civil claim for a breach of the common law duty owed to them as an employee. Such claims are typically made against employers and can be on the basis that they are liable:

• vicariously by the negligent conduct of the employee doing the bullying; and
• directly for failing to take reasonable action once on notice about bullying.

An example of a civil claim made by a worker who was bullied can be seen in Robinson v State of Queensland [2017] QSC 165, in which the plaintiff was awarded significant compensation for the psychiatric injury and loss caused as a result of the breach of duty by the employer. Even small employers are expected to have systems in place to deal with workplace concerns such as bullying, as shown in the case of Swan v Monash Law Book Cooperative [2013] VSC 326, where substantial compensation was ordered.

It is also possible for anti-discrimination laws in Australia to be applied to workplace bullying issues if the bullying is linked to a protected trait, such as race, sex, family responsibilities, or age. Such action may be commenced personally against the alleged bully, or against employers in some cases for indirect discrimination.

The harm caused by workplace bullying can be immense, which is why employers often have policies preventing workplace bullying and take seriously their obligations to address it.

Criminal charges

Workplace bullying can take many forms. Conduct such as assaults, threats, and offensive communication, which may constitute workplace bullying, can also give rise to criminal charges. For example, section 21A of the Crimes Act 1958 (Vic) was amended in 2011 to extend stalking charges to include conduct related to bullying (referred to as ‘Brodie’s Law’).

Work health and safety laws across Australia create obligations on businesses, business operators, executives, and employees. Workplace bullying is a psychosocial hazard for which there is a duty to prevent so far as reasonably practicable. For example, section 55C of the Work Health and Safety Regulation 2011 (Qld) creates a specific duty to manage psychosocial risks, which includes preventing workplace bullying so far as is reasonably practicable. Workers have a duty under work health and safety laws to take reasonable care their acts do not adversely affect the health and safety of others.

Response options for bullying allegations

In the context of responding to workplace bullying allegations in a workplace, there are many different options a person may need to consider, such as:

• Obtaining advice and guidance
• Alternative dispute resolution
• Challenging the process
• Challenging the allegations
• Initiating ‘without prejudice’ negotiations

In some cases, there may be multiple strands to a response with each having a distinct purpose but combining to ultimately work together. For example, while challenging the process and allegations, a lawyer may also be engaging in ‘without prejudice’ negotiations for their client in an attempt to settle the matter without findings or disciplinary action.

Obtaining advice and guidance

It is very common for employees facing a disciplinary process to be directed to keep it confidential, particularly with respect to work colleagues. While there can be legitimate reasons for such directions, it can leave people feeling isolated and disempowered.

Work can be one of our defining characteristics or at least an important part of how we perceive ourselves. So if you have been wrongly accused of bullying, it is obvious that it should generally be treated as being of the utmost importance. It can be surprising how often employers fail to:

• afford procedural fairness;
• comply with their own policies and procedures; or,
• consider relevant information.

Experienced lawyers are able to draw on past cases where similar issues were encountered and whether particular strategies or responses were persuasive. This bank of knowledge can be drawn upon to provide expert guidance for anybody newly facing such a situation. It can give people insight into the options available to address procedural flaws and other deficiencies.

In seeking advice from a lawyer about legal issues that arise in the course of earning an income, there is scope for legal fees to be a tax deduction, something that is usually just an afterthought in context. While people should always consult their tax advisors about issues of that kind, the barriers to getting advice and guidance are not always as large as they may first appear. The benefits of advice can be greatly underestimated by people facing allegations and disciplinary processes.

Alternative dispute resolution

Sometimes, instead of launching an investigation or disciplinary process in relation to a complaint or grievance, it is possible for some form of alternative dispute resolution to occur. For example, it may be possible for conciliation to proceed where the complainant (the person raising the complaint) and the respondent (the person who is the subject of the complaint) try to reach a mutually acceptable resolution to the issue. A conciliator may help the complainant and respondent:

• seek a resolution to the issue;
• identify ways to prevent future issues of concern from reoccurring; and,
• remedy any disadvantage or concern suffered.

Whether any form of alternative dispute resolution will be appropriate is something that an employer would need to consider on a case-by-case basis. Many workplaces will place an emphasis on attempting to resolve disputes through conciliation where possible. If conciliation or some other form of alternative dispute resolution is possible, there can be real benefits to all concerned, including:

• preservation or restoration of relationships in the workplace;
• potential savings in time and expense to resolve the issue;
• resolution of issues confidentially to preserve reputations; and,
• flexibility in the outcomes than may otherwise be the case.

While there are benefits to alternative dispute resolution, there are also risks that must be weighed. One of the main issues with workplace bullying is the potential power imbalances that may make alternative dispute resolution inappropriate. Employers are responsible for ensuring workplace issues and disputes are resolved appropriately, which includes taking into account the work health and safety risks posed by any course of action.

Challenging the process

In the context of a workplace investigation or internal disciplinary process, challenging the process refers to raising issues that go to matters of procedural fairness.

A workplace may be subject to rules about how a complaint or grievance is to be managed. This may be from a particular law, industrial instrument, employment contract, or internal policies and procedures. In the context of a workplace dealing with a bullying complaint, if procedural fairness is not afforded then any adverse decision may be open to challenge. Flawed processes may be subject to injunctions to preserve the status quo, withdrawn, or set aside.

Understandably, people can worry about ‘rocking the boat’ and may feel it would be better to not raise any misgivings about the process. In that regard, complaining about the process afterward may be put down to disappointment over the outcome if it is unfavourable.

There are many types of procedural flaws that may be open to challenge, for example:

• Failure by the employer to follow applicable policies and procedures
• Vague allegations without adequate particulars
• Denial of evidence and witness statements
• Unreasonable refusal to investigate or gather relevant evidence
• Refusal to allow a support person to attend a meeting
• Failure to allow adequate time and resources to respond

It is important to keep in perspective the likely impact raising a procedural complaint may have on the outcome, as not all flaws may ultimately matter. Also, often (not always) the longer a process goes on, the harder it is to seek alterations to it. For this reason, anybody concerned about the fairness of the process they are subject to ought to get advice from an employment lawyer at the earliest opportunity.

Challenging the allegations

Challenging an allegation requires focusing on two issues: credibility and reliability. In essence, credibility concerns honesty whereas reliability concerns accuracy. An allegation may be honestly raised but it may depend on a person who is mistaken or otherwise wrong.

One of the important tasks in challenging an allegation of workplace bullying is to identify, as early as possible, the relevant information or evidence that may show an allegation to lack credibility or be otherwise unreliable. The reason it is important to do so as early as possible is to ensure relevant witnesses are interviewed while matters are fresh in their minds, or to prevent other evidence from being lost or destroyed.

It may be found that the allegation is proved (substantiated) or not proved (unsubstantiated). In some circumstances, an allegation may be partly proved, in which case it is important to clarify what has been accepted or rejected, given it may affect the appropriate disciplinary decision to be made.

A challenge to an allegation is often the result of inconsistencies in the accounts of different people. Generally, it is inappropriate for an allegation to be substantiated simply because the person accused could not disprove it. If the employer substantiates an allegation, it should be because the employer is satisfied that the allegation is proven, having regard to all the relevant information. While an employer may not be expected to act with the expertise of a court, commission, or tribunal, concepts applied by those bodies will be relevant if there is a challenge to a disciplinary decision.

Initiating ‘without prejudice’ negotiations

When faced with an unjust workplace bullying allegation, it is understandable why you may wish to be vindicated. However, upon further thought, you may also begin to wonder if it is in your best interests to return to your current workplace. Returning to a difficult or even toxic workplace environment may not be the right option when everything is considered.

When a person disputes an allegation and feels wronged by how they have been treated, it can be possible to seek to resolve the dispute through ‘without prejudice’ negotiations. The purpose of ‘without prejudice’ negotiations between employers and employees is to resolve an active or potential legal dispute as quickly as possible.

In some situations, end-of-contract negotiations can see the respondent to allegations settle the dispute with a settlement payment and other benefits that allow them to move forward. While such payments and the confidentiality that surrounds them can be controversial, they have a role in settling potential disputes quickly and with minimal expense.

Confidential negotiations ending in a confidential agreement can help to manage the legal, reputational, and financial risks associated with facing a workplace bullying allegation.

Contested allegations create real risks for those who make allegations (complainants), those who face allegations (respondents), and those who must deal with the allegations (employers). Sometimes after working through the risks and rewards of different options, a confidential settlement may begin to look attractive as a way forward.

Initiating confidential ‘without prejudice’ negotiations with an employer is something generally undertaken by a lawyer on behalf of an employee. Power imbalances may otherwise impede discussions between the employer and employee, particularly at a time when an employee is facing a disciplinary process that may result in their dismissal.

While confidential negotiations and settlements are not always possible or appropriate, their use as a complementary strategy in trying to resolve disputes can see quick resolutions to situations that may otherwise take months to resolve through litigation. Handled incorrectly, allegations of contractual breaches, or worse, can be made.

Seeking to reach a mutual agreement or negotiated settlement generally requires a clear understanding of your legal rights, obligations, and options. Agreements of this kind often involve certain guarantees, indemnities, or waivers, which can have real consequences when breached. It highlights why it is prudent for ‘without prejudice’ negotiations to be handled sensitively and with the benefit of legal guidance.

Contesting unfair workplace bullying claims

Responding to a workplace bullying allegation requires proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies.

No generic response template will likely cut it.

If you need to respond to a bullying allegation, there are a number of steps you can take that may help you:

1. Review applicable laws and policies
2. Gather relevant and supporting evidence
3. Decide what is challenged or conceded
4. Consider your options before responding
5. Get advice from a lawyer
6. Respond purposefully

Review applicable laws and policies

It is necessary to review the applicable laws and policies because it will be through that framework the issues are determined. Often, an examination of the applicable laws and policies will allow an understanding of what procedural steps are necessary or appropriate.

In Australia, there can be real consequences for employers who fail to afford procedural fairness and compromise the ability of someone accused of workplace bullying to respond to the allegation. It can see a disciplinary decision based on a flawed process reversed, and compensation ordered.

Generally, a person facing a workplace bullying claim will need adequate particulars of the allegation. Often this will need to be accompanied by adequate information or disclosure of evidence that is sufficient to give the respondent an understanding of the relevant context in which issues are raised.

An illustration of the importance of understanding the laws and policies that govern a process can be seen in the case of Vega Vega v Hoyle [2015] QSC 111. It is important to note that this case related to a Queensland law, the Hospital and Health Boards Act 2011 (Qld), and not the Fair Work Act. In that case, having regard to the applicable laws and policies, the Supreme Court concluded that the employee, in that case, ought to have received all witness statements, amongst other things, in order to respond to a workplace investigation. It highlights the importance of understanding the applicable laws and industrial instruments, and how they may influence the resolution of the issues.

For these reasons, failing to appreciate the laws and policies that apply can see respondents to bullying allegations at work sell themselves short. Getting advice and assistance from an employment lawyer can help to ensure procedural flaws in a process get the attention they deserve.

Gather relevant evidence

If relevant evidence has not been gathered or is not uncovered, an unjust result may prevail.

When facing an allegation of workplace bullying, there may be practical limitations on the ability of a respondent to gather relevant evidence. For example, they may be suspended or have been instructed to not speak to their colleagues about the issue. So gathering the available evidence can seem easier in theory than it is in practice.

To gather the available evidence, it is necessary to know what rights and options executives and employees may have to obtain it. Moreover, it is essential to know what obligations exist for employers to consider it.

Evidence relevant to a response may go beyond simply addressing the allegation. It can also relate to evidence by experts, such as doctors, psychologists, or counsellors. Understanding how such evidence may fit into a response is not always obvious, nor are the legal consequences.

Employers are not necessarily required to have the skills of police or lawyers in dealing with evidence. However, understanding the reasonable expectations placed on employers can advantage respondents who know that certain information or evidence must be considered in order for them to avoid an outcome that is harsh, unjust, or unreasonable.

In dealing with complex issues around ownership and access to evidence, or the application of expert evidence, getting advice from an experienced lawyer can make a real difference.

Decide what is challenged

In responding to an allegation people feel is unfair, a common error is for people to look for fault everywhere. Sometimes, the reason why an unfair allegation is made is simple. People can be mistaken and they can have their facts wrong. Often in trying to show someone has fabricated a vicious lie, they miss the simple explanation that is easy to prove.

In some cases, there may be no dispute about what occurred. It may simply be about how those events are characterised (i.e., workplace bullying vs reasonable management action). In other cases, everything may be challenged and someone may be lying.

Narrowing the points in dispute can be a source of strength. Yet, one important matter employees often overlook in responding is raising wider issues that may have contributed to, or are at least relevant to, a workplace bullying allegation.

In addressing whether issues are accepted or rejected, it may be crucial to detail the information, witnesses, or evidence that may tend to support the claims being made. Moreover, it can be important to outline any procedural flaws or issues of non-compliance by the employer.

Deciding what is challenged or conceded is an essential step when facing a workplace bullying allegation, particularly one you believe to be unfair. Balancing an appropriately strong rejection of allegations with appropriate concessions be difficult. The decision about what is challenged or accepted ought to be made against the background of an understanding of the legal principles an employer is expected to apply to their decision.

One difficulty in responding to a bullying allegation in the workplace is understanding how to properly address issues of credibility and reliability. Quite obviously, calling into question the honesty or integrity of colleagues requires real consideration and care. It can damage employment relationships and be detrimental to the prospects of an employee keeping their job. Amid the emotion and stress of responding to a workplace bullying allegation, negotiating a safe passage can be hard. Advice from a lawyer experienced in addressing contested issues may assist you to strike the right balance.

Consider your options

There may be a number of options open when responding to a workplace bullying allegation. However, because the situation may be unfamiliar, involve short timeframes, and is generally highly stressful, people do not always appreciate their options or weigh them in a considered manner. 

One option people often do not consider early enough, if at all, is seeking to resolve a workplace dispute by negotiation. It may be asked: ‘Why would an employer negotiate with an employee facing an allegation of bullying at work? The reasons are not always obvious and require an appreciation of the legal, financial, and reputational risks employers can face when confronted with disputed allegations of this nature.

Where a respondent feels they have been treated unfairly and their position has been unfairly compromised by their employer, negotiating a commercial settlement can allow people facing accusations to resolve issues quickly and without the need for contested litigation.

A workplace bullying allegation can make it hard for an executive or employee to see how they could possibly return to their workplace. They may feel that any allegations or findings that have been made are wrong and strongly wish to be vindicated yet know that an outcome that sees them return to the workplace may feel like a Pyrrhic victory. In such circumstances, hiring a lawyer to engage in ‘without prejudice’ negotiations may allow an employee to reach a confidential settlement with their employer and allow them to move forward.

Taking the time to properly consider your options before responding to a workplace bullying allegation can focus attention on what may be realistically achievable and the ideal outcome. Getting advice and representation from a lawyer may assist to illuminate the potential risks and benefits of different options, as well as in responding strategically.

Get advice

Facing a bullying allegation is a serious issue in any workplace. In many cases, it goes beyond the immediate job a person holds. Adverse findings, disciplinary action, and dismissal can have far-reaching consequences for the reputation, livelihood, and financial security of an individual and their family. So, it is not to unduly elevate the importance of the issue by suggesting that it is prudent for a person to get legal advice before settling on how to respond.

Understanding that every response needs to be tailored to specific circumstances means there can be no ‘one size fits all’ approach to responding to a workplace bullying allegation. If you have been wrongly accused of bullying, it is obvious that it should generally be treated as being of the utmost importance.

Experienced lawyers are able to draw on past cases where similar issues were encountered and whether particular strategies or responses were persuasive. This bank of knowledge can be drawn upon to provide expert guidance for anybody newly facing such a situation.

If you face a workplace bullying allegation, it is a good first step to have a working understanding of some basic legal principles, consider relevant evidence and have a broad awareness of the options available. However, getting advice from a lawyer about how to translate that into a strategy to respond may make all the difference.

Respond purposefully

Responding purposefully refers to the need to take into account the importance of the issues at stake and the dangers of any missteps. For an individual, what may be at stake may not just be an immediate job, but their broader career and reputation. When responding to an unfair allegation of workplace bullying, being clear and persuasive is critical.

Whether you are on a collision course with your employer, or you simply seek to diplomatically navigate through some troubled waters, a purposeful response to a workplace bullying allegation will look different for different people.

People should have realistic expectations of how much work it may take to respond purposefully to a workplace bullying allegation, particularly one that is false or unfair. It begins with having an in-depth understanding of three issues:

1. The legal framework for workplace bullying
2. Response options for bullying allegations
3. Effective steps in contesting bullying claims

Even with a perfectly rational response, an unfair decision may be made. It may be disappointing, even devastating. Having appropriate support can be important, whether it is through an employee assistance program (EAP), doctor, or counsellor. With a proper strategy, it is possible to plan for different contingencies and respond as necessary. This can be particularly important with employment law issues, as there are strict deadlines to dispute dismissal decisions of employers.

Do you need to respond to a bullying claim?

It is not uncommon to encounter people who have been notified of an allegation relating to workplace bullying and see they are filled with uncertainty, doubt, and stress. It is normal, particularly for people who feel the allegation is false or unfair, or if they feel let down by how their employer handles the issue.

It is also not uncommon to see people making mistakes about the scope of the task. People can view the correctness of their position as self-evident. It can stop them from reflecting on their options in responding. It can see people underestimating just how much work may be involved in formulating a response that may produce a just outcome.

While some people may seek to engage a lawyer “if the worst happens” and they are met with a decision that does not go their way, it often becomes harder, not easier, to change the outcome the farther things are along the road. For that reason, people facing workplace challenges are always best advised to get legal advice as early as possible. Getting informed about issues of concern can make sense, but it is no substitute for tailored legal advice.

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About Andrew Anderson

Andrew Anderson has significant experience assisting people seeking help in responding to workplace bullying allegations. He assists executives and employees across Australia by:

• providing advice and guidance
• drafting responses during investigations
• negotiating settlement agreements with employers
• litigating disputes in courts and tribunals