Until 2014, the most direct form of legislation addressing workplace bullying was workplace health and safety legislation. However, the situation is changing with the Fair Work Act now directly addressing workplace bullying. Even so, workplace bullying remains a difficult area for the law.
One of the biggest difficulties the law has with workplace bullying is in trying to define exactly what it is, given its inherently subjective nature. The commonly accepted definition is:
A person is subjected to workplace bullying if the person is subjected to repeated behaviour, other than behaviour amounting to sexual harassment, by a person, including the person’s employer or a co-worker or group of co-workers of the person that:
- Is unwelcome and unsolicited;
- The person considers to be offensive, intimidating, humiliating or threatening;
- A reasonable person would consider to be offensive, humiliating, intimidating or threatening.
So, the behaviour must generally occur on more than 1 occasion and is subject to a “reasonable person” test.
Workplace bullying does not include reasonable management action taken in a reasonable way by the person’s employer in connection with the person’s employment. Examples can include:
- giving reasonable and lawful instructions and expecting them to be carried out;
- setting realistic standards of performance; and
- requesting improvement to work that is not up to standard.
Examples of workplace bullying include:
- Verbal abuse and constant ridicule;
- Repeated threats of dismissal;
- Persistent and unjustified criticisms or complaints, often about small things;
- Humiliating a person through gestures, sarcasm, criticism and insults;
- Spreading gossip or false, malicious rumours about a person;
- Sabotaging a person’s work, for example, by withholding or supplying incorrect information, hiding documents or equipment, not passing on messages and seeking to get a person into trouble.
Workplace bullying can occur:
- Laterally – a co-worker harassing another co-worker;
- Upwards – a worker harassing a manager/supervisor;
- Downwards – a supervisor/manager harassing a worker.
Effective 1 January 2014, amendments were made to the Fair Work Act 2009 (Cth) which provide that a worker will be “bullied at work” if:
i. while the worker is at work;
ii. an individual or group of individuals;
iv. behaves unreasonably;
v. towards the worker or a group of workers of which the worker is a member; and
vi. the behaviour creates a risk to health and safety.
Often the law has greatest difficulty dealing with what might be called low level harassment, occurring over a lengthy period that can frequently be subtle in nature, including claims of overwork or underwork, and denial of access to resources. Even greater difficulty is encountered with “passive” bullying which can include ignoring or not speaking to a person.
Addressing workplace bullying
It is advisable for employers to have a specific policy about workplace bullying which should set out a process for making an internal complaint or may have a general complaints policy that employees can use if they wish to raise the matter formally with the employer.
It is always a good idea to see if a matter can be resolved informally and internally without resorting to external avenues but this is not always possible.
From an employer’s perspective, it is important to be clear and upfront with employees that workplace bullying will not be tolerated. This should start with a clear policy which is communicated to employees and reinforced periodically and perhaps some training in the area.
An employer should also encourage reporting of bullying and ensure that managers are aware of the signs of workplace harassment and bullying so that steps can be taken at an early stage.
What legal action can be taken?
Forms of legal action to address workplace bullying are as follows:
- The Police
- Fair Work Ombudsman (FWO) – the FWO may take proceedings for breach of the legislation in an appropriate case where workplace bullying is involved. Unlike the situation in workplace health and safety prosecutions, there have been cases where penalties for breaches of the Fair Work Act have been ordered to be paid to the victim involved.
- Fair Work Commission – seeking an ordes to “stop” bullying under recent amendments to the Fair Work Act 2009 (Cth). The purpose of the new avenue is to promote the right to safe and healthy working conditions by providing a mechanism to help an individual worker resolve a bullying matter quickly and inexpensively. This does not prevent a worker from also pursuing any of the legal avenues previously considered (although the existence of such proceedings would be taken into account by the Commission in considering whether to make an order). The laws do not apply to sole traders, partnerships or trusts with an individual trustee, rather, only to “constitutional corporations.”(federal government, Commonwealth authorities and “trading, financial or overseas” corporations). Only a “worker” can make an application to the Fair Work Commission but that term is defined broadly. A “worker” is an individual who performs work in any capacity, ie an employee, individual contractor or subcontractor, outworker, apprentice, trainee, work experience student or volunteer. The term includes an employee of a corporate contractor or subcontractor and labour hire workers.
- Fair Work Commission – Unfair Dismissal Claim, if bullying involves the termination of employment.
- Fair Work Commission – Unfair Lawful Termination / Adverse Action Claim, in an adverse action claim, it is not the fact of the workplace bullying that is of primary relevance but the fact that the employee had a workplace right or did or did not exercise that right or made a query about their employment. This type of claim often involves an action taken by an employer in retaliation for something the employee has done.
- Discrimination Claim – if it can be shown the conduct either constituted sexual harassment or direct or indirect discrimination.
- Workers Compensation Claim
- Breach of Contract Claim – If an employer has a policy setting out commitments about how it will address workplace harassment and bullying and if that policy can be said to be more than just a guideline but a binding obligation under the contract of employment.