Before you can take any legal steps to address the behaviour of a bully, you must first be sure that the behaviour is in fact considered bullying.

What is Workplace Bullying?

A relatively simple definition of bullying can be found in section 789FD(1) of the Fair Work Act.

A worker is bullied at work if:

1. While the worker is at work in a constitutionally-covered business:
(i) An individual; or
(ii) A group of individuals
Repeatedly behaves unreasonable 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.

This definition specifically excludes reasonable management action. This encompasses things such as reasonable disciplinary action, performance reviews and investigation of workplace complaints. Such issues need to be assessed and addressed on a case by case basis.

The best first step is to identify if your employer has any policies or procedures with respect to bulling. Were these exist, the Fair Work Commission encourages a complainant to utilise those formal or informal complaints process at first instance. However, this may not be possible if your employer does not have such policies or procedures, refuses or is unable to address a complaint. This also may not be appropriate if the bulling is top down, for example, if the perpetrator of the bullying is the complainant’s manager.

What to do When Internal Procedures and Processes Fail

 

The High Court case of Koehler v Cerebos (Australia) Ltd (2005) 222, set out a clear general duty of care for employers to provide a safe workplace to employees, a duty which is now enshrined in various State and Territory legislation, relevantly, the Work Health and Safety 2011 (NSW).

Where internal processes and procedures fail the employee or are not appropriate in the circumstances, the law provides a safety net for victims in the form of “Stop Bullying Orders” and “General Protections Claims”.

Any person who reasonably believes he/she/they have or are being bullied in their workplace and that person is still employed at the organisation within which the alleged bullying is taking or has taken place, may make an application to the Fair Work Commission (“FWC”) to obtain Stop Bulling Orders.

A number of criteria must be met for a person to be considered.

An individual must be covered by the Anti-Bullying Legislation and meet the definition of a worker to lodge an application. A worker includes an employee, contractor or subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company who has been assigned to work in a particular business or organisation, an outworker, an apprentice or trainee, a student gaining work experience and volunteers.

The national anti-bullying laws only cover a Worker if they work in a ‘constitutionally covered business’ so it is important for any employee making an application to check if their employer meets this criteria. Most constitutional corporations such a proprietary limited companies are constitutionally covered businesses.

The Fair Work Commission can only make an order if there is a risk that the worker will continue to be bullied at work by the particular individual or group. Accordingly, it is essential that the employee remain engaged at the workplace where they allege the bullying occurred. Orders, therefore, also cannot be made where there is no risk of the bullying conduct continuing.

If you are an employee and are unsure if you meet the criteria to escalate a bullying claim through the Fair Work Commission or are otherwise unsure how to address the issue with your employer, Adams & Partners Lawyers Employment Team can help you navigate this process.

Important Considerations for Employers

 

If an employer fails in its duty of care to an employee, and an employee suffers an injury as a result (be that physical or psychological), the employer may be held liable to the employee for negligence, breaches of statutory obligations pursuant to the work health and safety legislation and/or a workers compensation claim. Such a duty extends to the treatment of both parties during the investigation of a bullying allegation including support offered to safeguard an employee’s health and wellbeing.[1] Such claims may be brought by virtue of an employer’s actions and conduct but are equally as valid where an employer has remained silent, remained passive in circumstances where the unreasonable behaviour is known to the employer or been reported and failed to investigate or take appropriate action against perpetrators.

If you are an employer faced with allegations of bullying within your workplace, Adams & Partners Employment Law Team can assist you in ensuring your investigation is fair and reasonably conducted, (02) 4721 6200.

Written by Amelia Hatton.

[1] Hayes v Queensland [2017] 1 Qd R 337; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

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