Workplace bullying is an issue that can affect all companies - large and small. That's why all companies need to have clear policies and guidelines in place in order to deal with any problems that may arise and to also help prevent them.
Below is a comprehensive guide that clearly defines what constitutes workplace bullying - and outlines how employers should respond to it.
What is workplace bullying?
Generally, workplace bullying refers to conduct or behaviour that:
- is by a person working in a workplace; is repeated (i.e. is not one-off); is unreasonable; is directed towards another person or group of people in the workplace; and creates a risk to health and safety.
Workplace bullying is not confined only to the physical workspace. Bullying can also occur out of hours. For example, a worker might be bullied through social media. See the Fair Work Commission's (FWC) comprehensive guide here...
The standard of unreasonable behaviour is determined objectively. That is, what would a reasonable person, who is aware of the conduct and the impact it is having on the person to whom it is directed, consider to be unreasonable conduct?
The alleged bully might consider their conduct to be perfectly reasonable. However, the conduct may still amount to workplace bullying if a reasonable person would consider it so.
The alleged bully does not need to intend harm to the victim in order to be engaging in workplace bullying. Nor is it sufficient for a person (the victim) to be offended or stressed by the unreasonable behaviour of the alleged bully. However, if the person feels victimised, humiliated, intimidated or threatened by the behaviour, then the conduct will usually be seen as bullying, regardless of how objectively reasonable that conduct may be.
The focus is on the health and safety of the individual. If a person in the workplace has a particular vulnerability to feelings of "being bullied", then an employer who knows of that vulnerability (or who ought reasonably to know) is expected to take reasonably practicable measures to minimise the risk posed to that person's health from interactions with other workers and managers.
Examples of conduct creating a potential risk to another employee's health and safety include:
- behaving aggressively and intimidating; making belittling, degrading or humiliating comments; victimisation; spreading misinformation or malicious rumours; engaging in practical jokes or initiation rites; using abusive, insulting or offensive language; delivering criticism by yelling or screaming; displaying offensive material (e.g. pornography); making inappropriate comments about a person's appearance, lifestyle or family; teasing or regularly making someone the brunt of pranks; interfering with a person's property or work equipment (e.g. hiding or defacing someone's property); and pressuring a person to behave in an inappropriate manner.
More subtle or indirect behaviours may, if frequently repeated over an extended period of time, amount to a significant psychological hazard for a worker. Examples of such behaviour include:
- deliberately or maliciously overloading a person with work or providing insufficient work; unreasonably setting timelines or deadlines that are difficult to achieve or constantly changing; setting tasks that are unreasonably below or beyond a person's skill level; deliberately excluding, isolating or marginalising a person from normal work activities (e.g. excluding a worker from meetings or functions that everyone else attends); withholding information that is vital for effective work performance; deliberately denying access to information, consultation or resources; deliberately changing work arrangements, such as rosters and leave, to inconvenience a particular worker or workers; and unfair treatment in relation to accessing workplace entitlements (e.g. leave or training).
Reasonable management action carried out in a reasonable manner is not bullying. Reasonable management action in the workplace is management action:
- taken for good reason; and carried out in a reasonable manner.
Whether management action is reasonable depends on:
- the circumstances justifying the need for the management action; the circumstances while the management action was being taken; and the consequences flowing from the management action.
The emotional state and psychological health of the worker involved may also be relevant to reasonableness. Whether management action could have been undertaken in a more reasonable or acceptable manner is irrelevant.
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. Reasonable action must also be lawful and not be irrational, absurd or ridiculous.
If the employee thinks the action is unreasonable, then that is irrelevant (although this does go to the question of whether it poses a work health and safety risk).
It is relevant if the management action involved a significant departure from established policies or procedures, in circumstances that are not reasonable.
Whether the management action was taken in a reasonable manner may depend on:
- the action; the facts and circumstances giving rise to the requirement for action; the way in which the action affects the worker; and the circumstances in which the action was implemented.
A recent FWC decision examining the concept of reasonable management action is found here....
How can employers deal with bullying cases?
Some workplaces will have policies and procedures for dealing with the prevention of workplace bullying and for dealing with complaints and reports of such bullying. These may be contained within documents such as the workplace's enterprise agreement or a code of conduct.
Some of the ways that a report or complaint of workplace bullying might be resolved in an organisation, following appropriate investigation, is for the perpetrator to receive:
- changed working arrangements; a warning; professional counselling; and/or leadership or communication training.
The victim could receive:
- an apology from the perpetrator; professional counselling; re-crediting of any sick leave taken; mentoring and support from management or human resources; resilience training, assertive communication or self-esteem programmes; and/or transfer to another work area.
Failure to act on reports of workplace bullying can expose the employer to liability in negligence (see a landmark Victorian decision here...)
Useful resources for an employer to manager workplace bullying issues cane be found at the Safe Work Australia website here...
How can a victim of bullying make a claim in the Fair Work Commission?
The FWC was given an anti-bullying scheme following a House of Representatives inquiry into the scourge of workplace bullying.
An eligible worker who reasonably believes they have been bullied at work may apply to the FWC for an order to stop bullying. They may do so whether or not they have first tried to deal with the matter through any available internal procedures.
An eligible worker includes an employee, contractor (if an individual), outworker, apprentice, trainee, and work experience student.
The worker must be currently working in a constitutionally-covered business. This excludes people working for individuals, bodies corporate that are not constitutional corporations and State public sector entities.
There is no timeframe within which a worker must lodge an application to the FWC for an order to stop bullying.
How will the FWC deal with the claim?
The FWC must start to deal with the application within 14 days after it is made. The FWC may:
- contact the employer or other parties to the application; inform itself of the matter; conduct a conference; hold a formal hearing; refer a matter to a work health and safety regulator if it considers this necessary and appropriate; and/or dismiss the application.
Any conference conducted by the FWC must be held in private. In the course of dealing with a matter, the FWC may conduct mediation or conciliation, make a recommendation to the parties or express an opinion.
The FWC may inform itself by requiring a person to attend before it, provide written and oral submissions, provide copies of documents and give evidence under oath or affirmation.
Before it makes an order, the FWC must be satisfied the worker has been bullied at work in the requisite sense and there is a risk this will continue. A key FWC decision exploring the concept of 'at work' is found here...
The FWC can make any order it considers appropriate (other than an order requiring a financial payment) to prevent a worker from being bullied at work by an individual or group of individuals. The orders are directed at the conduct leading to the finding of bullying behaviour and so can be directed to the applicant, the individual whose behaviour has led to the application and their respective employer or principal. The FWC's focus is on resolving the matter and enabling normal working relationships to resume.
When considering the terms of an order to prevent further bullying behaviour, the FWC must, to the extent that it is aware, take into account:
- any outcomes arising from an investigation into the matter by another person or body (whether that investigation is complete or not); and any procedures available to the worker to resolve grievances or disputes and any outcomes arising from those procedures e.g. any internal complaint mechanisms that may exist under work health and safety laws or under an enterprise agreement or award.
Specifically, the FWC may order:
- the individuals or group to stop the specified behaviour; regular monitoring of behaviours by an employer; compliance with an employer's anti-bullying policy; the provision of information and additional support and training to workers; and/or a review of the employer's workplace bullying policy.
Orders will not necessarily apply only to the business of the worker who is bullied. An order could apply to co-workers, visitors to the workplace and third party employers (i.e. where employees off-site are supplying labour to the workplace). An order could be based on behaviour such as threats made outside the workplace, if the threats relate to work.
The FWC cannot order the payment of compensation or a pecuniary amount.
A person to whom an order to stop bullying applies must not contravene a term of the order. This is a civil remedy provision.
For a wrap-up of FWC anti-bullying matters, please click here...
Additional resources:
Fair Work Commission upholds bullied workers' claims of abuse
Taxpayers pay over 'brutal campaign of bullying' by CSIRO
CommSec employee sues over 'micromanagement'
