1. Workplace bullying fundamentals

1. Workplace bullying fundamentals

Workplace bullying occurs at work when one worker repeatedly behaves unreasonably towards another worker, which creates a risk to health and safety. Unreasonable behaviour includes verbal, physical, psychological and social abuse. However, it does not occur simply because someone feels hurt, embarrassed, or humiliated.

Experience shows that people often have strong views about what is and isn’t workplace bullying based on their own experience, which can be wrong. With respect to workplace bullying allegations, for obvious reasons, it is a real disadvantage to not know what is – and what is not – workplace bullying.

Bullying and harassment in the workplace can take different forms. For that reason, people experiencing bullying at work may take different action depending on the issues they face. A 2020/21 study (Australian Workplace Barometer Fact Sheet) on bullying and harassment provides insight into this issue. It found the most frequent workplace bullying behaviours to be verbal abuse and humiliation:

The varied ways a bullying allegation may arise means there is no ‘one-size-fits-all’ approach to responding to being bullied at work. In Australia, as elsewhere, workplace bullying does occur. However, false or unfair workplace bullying complaints also happen. It is not always a case of the accuser lying about events. People can wrongly label something as “bullying”. For this reason, taking the time to understand what is workplace bullying can be an important first step. However, as with any legal issue, there is no substitute for getting professional legal advice as early as possible.

Key Questions:

What is workplace bullying?

It is important to be aware that workplace bullying does not have a universal definition in Australia. Therefore, it is always necessary to ensure you understand the definition you are working with is properly identified. That said, in Australia, a key definition of workplace bullying is found in the Fair Work Act 2009 (Cth). The Fair Work Act covers most employees in Australia. As such, it is generally the definition referred to when people ask about the meaning of ‘workplace bullying’.

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.

So, to break it down, the definition of ‘bullying’ in section 789FD(1) of the Fair Work Act 2009 (Cth) has a number of key words and phrases:

1. “while the worker is at work”
2. “individuals” or “group of individuals”
3. “unreasonable” behaviour
4. “repeated” behaviour
5. “creates a risk to health and safety”

If any element of the definition cannot be established, then the allegation of bullying fails. Also, conduct considered ‘reasonable management action’ is excluded from the definition of workplace bullying.

What are some examples of workplace bullying?

With respect to workplace bullying, in Mac v Bank of Queensland Limited and Others [2015] FWC 774, the Fair Work Commission gave 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]):

[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…

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, and business operators 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.

Reasonable management action is only protected if carried out “in a reasonable manner”. It may involve performance management and appraisals, changes to working arrangements, investigating complaints and disciplinary action. Overall, these actions may affect the rights or interests of a worker who may feel, rightly or wrongly, that they are being unfairly targeted. As a result, it is in that context that complaints can be made against an executive or manager.

What are some examples of reasonable management action?

With respect to reasonable management action, the following principles were identified by the Fair Work Commission 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.

2. Options if you are bullied

2. Options if you are bullied

If you have been bullied at work in Queensland, you have a range of options in how you may wish to respond to it. How people respond can be a personal decision and preferences can change over time. The options highlighted below as possible responses are not mutually exclusive and need not be followed in any particular order.

If you’ve being experiencing workplace bullying, the following may assist you:

1. Keep records
2. Get support
3. Obtain legal advice
4. Make a workplace complaint
5. Lodge a civil law claim
6. File a criminal law complaint

1. Keep records

Keeping a record of events can ensure important evidence is not lost, forgotten or destroyed. For example, text messages, emails and other documents can be importance sources of information when evaluating workplace bullying complaints.

Sometimes, people do not wish to make an immediate complaint about an incident. Or they may give someone the benefit of the doubt about something only to realise later it is relevant to explaining a course or pattern of behaviour. As workplace bullying requires proof of repeated unreasonable behaviour, keeping records can help to prove issues.

Keeping records of anything that may be relevant to a workplace bullying complaint, even if currently you are not sure what you may wish to do, can assist down the track.

2. Get support

If you have experienced bullying at work it is important to get appropriate support. There are numerous potential sources of support:

• Family and friends who you trust
• Counselling support, including through employee assistance programs (EAP)
• Medical support
• Supervisors and managers at work
• Work health and safety representatives at work
• Union representatives

Many workplaces will have policies and procedures that outline particular supports offered in response to workplace bullying. However, some people not feel safe in seeking support through their workplace, as the person who is bullying them holds a senior position, for example. Confidentiality can also be a concern for some people.

It is important to understand that in some workplaces there may be an obligation to formally report or refer on information about workplace bullying, including where it can constitute corrupt conduct.

3. Obtain legal advice

If you have been bullied at work, it can unfairly and detrimentally affect you in a variety of ways. A lawyer can help you to understand how to protect your rights and advance your interests.

Obtaining legal advice that is protected by ‘legal professional privilege’ can allow people to ensure they are fully informed about their options in a confidential manner.

Sometimes, people are worried about the perception that may be created by a lawyer providing them assistance. It is important to reflect on why anybody should feel discouraged from seeking to protect their legitimate rights and interests, particularly when they have been wronged. Why should anybody who has experienced workplace bullying not be entitled to seek what the law provides? The question is especially important given workplace bullying has potential long-term consequences.

In contemplating whether to seek legal advice, people often undertake a quick and intuitive ‘cost vs benefit analysis’. Beliefs people have about costs and benefits can be wildly inaccurate. Sometimes, the easiest way to form an accurate picture is to pick up the phone, reach out to a lawyer, and get a clearer understanding of the potential assistance they can provide.

4. Make a workplace complaint

Workplace bullying can constitute misconduct, and, in some instances, serious misconduct. Substantiated complaints can result in disciplinary action being taken, up to and including summary dismissal. Moreover, professional disciplinary action can follow for certain regulated jobs and professions, such as doctors, nurses, lawyers, and teachers if a complaint is made to the relevant regulatory body.

Before making a complaint about workplace bullying to your employer, it can be beneficial to understand whether there are any applicable policies or procedures. Such documents can outline reporting expectations, processes that are followed, and information about confidentiality and disclosure.

If you make a workplace complaint, it can be important to understand how the issue may be handled and any avenues you may have to raise concerns. Common concerns include:

• Confidentiality of the complaint
• Directions to refrain from talking to colleagues about certain topics
• Delays in finalising investigations
• Potential bias and conflicts of interests
• Lack of transparency about findings and outcomes 

If you make a complaint to your employer about workplace bullying, you should expect to be protected from victimisation and further harassment.

5. Lodge a civil law claim

If you have been bullied at work in Australia, you have the option of applying for a ‘stop bullying’ order in the Fair Work Commission. Common civil claims in response to workplace bullying include:

• Orders to stop bullying
• Discrimination claims
• Personal injuries claims

A person who has experienced sexual harassment at work can apply to the Fair Work Commission for an order that it stop. For such applications to be made, the person aggrieved must still be connected to the workplace.

In Queensland, a person who experiences harassment or bullying that is related to a protected attribute may seek compensation and other remedies through a discrimination claim. Bullying can constitute discrimination based on sex or other protected attributes. In Queensland, a discrimination complaint of this kind may be made to:

• Queensland Human Rights Commission
• Australian Human Rights Commission

This law firm assists people who have experienced bullying and harassment at work to lodge claims in the Queensland Human Rights Commission or Australian Human Rights Commission.

In some cases where an injury has resulted, a person in Queensland may wish to pursue a claim for worker’s compensation or personal injuries compensation.

Strict time limits apply to civil law claims, so it is always prudent to seek legal advice about your rights and any applicable time limits as soon as possible.

6. File a criminal law complaint

Some instances of workplace bullying can constitute a criminal offence in Australia.

Across Australia, there are criminal laws that can be used to address serious instances of workplace bullying. For example, in Victoria, ‘Brodie’s law’ extended the meaning of ‘stalking’ under section 21A of the Crimes Act 1958 (Vic) to include conduct that would be considered workplace bullying.

The offences that may be relevant are broader than may be first realised. While offences such as assault or unlawful stalking, intimidation, harassment or abuse may be the subject of complaints to police, workplace bullying may also be an offence under work health and safety laws, given bullying can create risks to psychosocial health.

3. Making a bullying complaint

3. Making a bullying complaint

If you have experienced workplace bullying and are considering making a bullying complaint at work, it is important to understand some of the processes that may follow.

It is quite common for people accused of workplace bullying to be suspended or stood down from work, or otherwise directed to not attend the workplace or communicate with certain people. Likewise, a person making a workplace bullying accusation can be directed not to discuss it with others and keep any investigation process confidential. Delays and uncertainty can create real stress for people in such situations.

If you make a workplace bullying complaint and feel it is not being handled appropriately or fairly, it is important to get advice as soon as possible. For any employer that must deal with a workplace bullying allegation, they must balance a number of issues. In order to decide the appropriate response, it is often necessary for the following questions to be answered:

• Is an investigation necessary?
• What is the nature of the allegation or issue?
• Who should investigate the allegation or issue?

Is an investigation necessary?

Workplace investigations can arise for any number of reasons. Examples of why an employer or manager may contemplate a workplace investigation include:

• complaints or grievances
• underperformance concerns
• work health and safety concerns
• workplace conduct concerns
• workplace inefficiency concerns

The nature of the concern may influence the type of response that is appropriate. Of course, a workplace investigation will not always be necessary or appropriate. There are many situations where it may be preferable to address an issue through informal discussions, mediation or additional training. However, some issues may only be properly resolved through a formal workplace investigation, such as disputed allegations of sexual harassment or workplace bullying. Some complaints, such as workplace bullying complaints, clearly give rise to a work health and safety risk and the failure of an employer to properly respond may increase the likelihood they will be found vicariously liable for any resulting harm as well as face investigation by regulators. For this reason, sometimes an employer will feel little choice but to initiate some form of investigation into a workplace issue.

It is always important for employers to have regard to relevant awards, enterprise agreements, employment contracts, and policies and procedures to ensure compliance with any requirements with respect to workplace investigations. The failure to properly deal with issues in accordance with such arrangements can expose an employer to successful claims. For example, in Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177, the Full Court of the Federal Court found that the employer had breached its employment contract with an employee by failing to comply with its own investigation policy.

What is the nature of the allegation or issue?

The more serious the allegation or issue, the more likely an investigation will be warranted. For example, if an allegation relates to unlawful conduct or serious misconduct, which is almost inevitably going to require disciplinary action if proved, then it is more likely a formal investigation of some kind will be warranted. On the other hand, an employer may receive a complaint or grievance over a relatively minor issue, in which case there may be good reason to avoid an investigation altogether and instead resolve it through an informal discussion or mediation.

Who should investigate the allegation or issue?

While a business operator or manager may know they will be the one who has to decide what to do about an allegation or issue, it does not mean they must also be the one to conduct the investigation. There is a range of considerations that should go into the decision as to who should conduct a workplace investigation, including:

• Whether there will be bias or perceived bias if an internal employee conducts the investigation;
• Whether the business or organisation has the resources to investigate;
• Whether the seriousness or complexity of the investigation requires an expert in investigations; and,
• Whether the allegation or issue ought to be referred to a regulatory body or law enforcement agency.

Employers need to consider whether an allegation must be – or ought to be – referred to a regulatory body or law enforcement agency. In some cases, failure to appropriately refer an allegation or issue to a regulator or law enforcement agency will itself constitute a breach of the responsibilities of the employer and open it up to disciplinary or criminal consequences.

Answering the question ‘Who should investigate the allegation or issue?’ may require reference to relevant awards, enterprise agreements, employment contracts, and policies and procedures. The answer necessarily affects the type of workplace investigation to be undertaken.

4. The benefits of legal advice

4. The benefits of legal advice

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact workplace bullying can have on a person. This firm helps people who experience bullying and harassment at work.

Dealing with workplace bullying is a serious matter. While there are multiple ways a person may seek to respond to workplace bullying, hiring a lawyer to assist you in considering your options may be a prudent decision for several reasons.

1. Legal expertise and knowledge

A lawyer brings extensive knowledge of employment and discrimination law and the legal frameworks governing workplace investigations and disciplinary processes, including with respect to workplace bullying complaints. This expertise can help you understand your rights, ensuring that your decisions are legally sound and strategically effective.

2. Tailored and strategic assistance

Lawyers are skilled in assisting people to advance their interests. They can highlight procedural flaws and aggravating factors and identify evidence that supports your case. Their ability to structure complaints and claims can assist in showing why it is compelling and correct.

3. Navigating complex issues

The legal implications of workplace bullying claims can be complex. A lawyer can help you navigate this terrain, advising on the strengths and weaknesses of different courses of action. This includes understanding the potential outcomes, knowing when to negotiate for a settlement, and recognising when and how to escalate matters.

4. Profesional communication

Bullying issues at work are inherently stressful. The way such issues can affect your engagement in the workplace, economic security, and mental health can be profound. A lawyer can alleviate some of this stress by handling communications with your employer and others, advising you on your rights, and providing a clear path forward. They ensure that your response is professional, respectful, and focused on resolving the issue constructively.