Bullying in the workplace

Bullying in the workplace: overview and information

bully-in-the-workplace

As of 1 January 2014, there are specific provisions in place in the Fair Work Act for a worker who has been bullied at work t.o apply to the Fair Work Commission (the FWC) for an order to stop the bullying.

Quick overview

Types of orders that can be issued by the Fair Work Commission (FWC) and other avenues/remedies a worker can possibly pursue if alleged bullying in the workplace occurs/has occurred:

Types of orders

The FWC may make any order it considers appropriate other than the payment of compensation, reinstatement or penalties. Orders may include:

  • That an individual stop certain specified behaviour;
  • That persons monitor certain behaviour;
  • That persons provide relevant information, support or training;
  • To develop or amend current policies and procedures; and/or
  • That a business review its relevant management systems.

Orders can also be made against individuals, groups or the employer.

Breaching an order made by the FWC  to stop bullying is a contravention of the civil remedy provision of the FWAct, which can now be subjected to penalties of up to $10,200 for an individual or $51,000 for a body corporate. In addition, the Fair Work Commission can also send a report to a Work Health and Safety (WHS) regulator, such as a WorkCover or a WorkSafe regulator.

The first FWC bullying case: the orders made

In March 2014, the Fair Work Commission (FWC) made its first substantive anti-bullying orders in Sydney and ordered an unnamed workplace bully to refrain from commenting on his victim’s clothes or appearance. The FWC also imposed a condition on the bullied victim.

The workplace bully was ordered:

  • not comment on the applicant’s appearance;
  • have no contact with the victim when not in the presence of others
  • not send emails or texts to the victim except in emergency situations
  • not raise any work issues without notifying his chief operating officer or the officer’s subordinate first, and
  • complete any exercise at his employer’s premises before 8 in the morning.

The condition imposed on the bullied victim:

The FWC (Senior Deputy President Drake) ordered the bullied victim not to arrive at work before 8.15 in the morning.

You can read the full text of the case here: Applicant v Respondent [2014] PR548852 (21 March 2014)

 

Other avenues/remedies a worker can possibly pursue if alleged bullying in the workplace occurs

Multiple actions possible

A worker seeking a remedy from the Fair Work Commission with respect to workplace bullying can -at the same time – also seek other remedies for the (alleged) bullying. These avenues can include:

  • Making a workers compensation claim
  • Pursuing discrimination law proceedings before a discrimination tribunal
  • Raising their dispute with the relevant Commonwealth, State or territory Work Health and Safety (WHS) regulator
  • Commencing adverse action (general protections) proceedings before the Fair Work Commission, and therefore Federal Circuit Court and Federal Court
  • Alleging breach of the employment contract

This basically means that a bullied worker can pursue multiple proceedings in relation to the same bullying allegation, simultaneously.

 

Bullying

Workers who believe they’re being bullied at work can apply to the Fair Work Commission for an order to stop the bullying. For details, see ‘What can I do’ below.

Workplace bullying can also be a breach of health and safety laws. State and territory health and safety organisations may decide to respond to complaints about workplace bullying and can prosecute for breaches of health and safety laws. For more information visit our useful links section below.

Important note: the Fair Work Commission can only deal with applications for an order to stop bullying if a worker is bullied while they are at work in a constitutionally covered business.
(For more information about constitutionally covered businesses, go to the Glossary)

What is bullying?

Bullying is when:

a person or a group of persons repeatedly behaves unreasonably towards another person or group at work, and the behaviour creates a health and safety risk.

But, and here is the caveat, bullying does not include reasonable management actions done in a reasonable way.

Read the meaning of workplace bullying at s.789FD of the Fair Work Act 2009 here>>

The new Fair Work Act – Part 6‑4B—Workers bullied at work can be found here

According to the Fair Work Commission website, bullying behaviour may involve, for example, any of the following types of behaviour:

  • aggressive or intimidating conduct
  • belittling or humiliating comments
  • spreading malicious rumours
  • teasing, practical jokes or ‘initiation ceremonies’
  • exclusion from work-related events
  • unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level
  • displaying offensive material
  • pressure to behave in an inappropriate manner.
However, in order for it to be bullying the behaviour must be repeated and unreasonable and must create a risk to health and safety.

What is reasonable management action?

Reasonable management action carried out in a reasonable manner does not constitute bullying.

Reasonable management action may include:

  • performance management processes
  • disciplinary action for misconduct
  • informing a worker about unsatisfactory work performance or inappropriate work behaviour
  • asking a worker to perform reasonable duties in keeping with their job
  • maintaining reasonable workplace goals and standards.
However, these actions must be conducted in a reasonable manner. If they are not, they could still be bullying.

Managing underperformance – a note

Establishing effective performance management systems can have significant benefits for a business, leading to happier, more motivated and better performing employees. Reviewing, refining and implementing performance management systems are ways of helping achieve these benefits.

This Best Practice Guide explains:

  • what is meant by underperformance
  • some reasons for underperformance
  • systems for managing underperformance
  • a five-step plan to help employers and employees manage and address underperformance.

There is also a checklist to assist best practice employers.

Download the Managing underperformance Best Practice Guide:

What can I do (about bullying)?

The Fair Work Ombudsman website states:

Bullying happens when someone repeatedly behaves unreasonably towards another person or group at work and that behaviour creates a risk to health and safety. Bullying doesn’t include reasonable management actions done in a reasonable way.

Workers who think they’re being bullied at work can apply to the Fair Work Commission for an order to stop the bullying.

Making an application to the Fair Work Commission for an order to stop bullying is a workplace right protected under the general protections provisions of the Fair Work Act.

Workplace bullying can also be a breach of health and safety laws. State and territory health and safety organisations may decide to respond to complaints about workplace bullying and can prosecute for breaches of health and safety laws. This is a different process and system to the Fair Work Commission’s role from 1 January 2014.

Am I covered by the national anti-bullying laws?

Workers are only covered by the national anti-bullying laws if they work for certain kinds of businesses or organisations. These include:

  • constitutional corporations (eg. Pty Ltd and Ltd businesses)
  • the Australian government and its agencies
  • sole traders, partnerships and trusts in the ACT or NT, and
  • body corporates incorporated in the ACT or NT.

The national bullying laws cover all ‘workers’ that work for one of the above businesses. Workers can include:

  • employees
  • contractors
  • subcontractors
  • outworkers
  • apprentices
  • trainees
  • work experience students
  • volunteers.

A member of the Defence Force is not covered by the national anti-bullying laws.

Workers who have been dismissed or had their contract terminated can’t apply for an anti-bullying order. If you think you’ve been unfairly dismissed or dismissed for a discriminatory reason, visit our (the FW) unfair dismissal and unlawful termination pages.

The Fair Work Commission’s eligibility quiz  and guide to the anti-bullying laws  have more information on who’s covered by the national anti-bullying laws.

How do I apply?

There are no time limits for making an application but the worker must still be working at the place or for the business where the bullying took place.

If you’re eligible and think you’re being bullied at work you can apply to the Fair Work Commission for an order to stop the bullying. An application fee may apply. You can use the Commission’s eligibility quiz  to check if you’re eligible.

Please note the national anti-bullying laws start on 1 January 2014. Allegations of bullying that happened before this date should be raised with state or territory health and safety bodies, unless there’s a risk that the bullying will continue.

What happens next?

When you make an application to the Fair Work Commission, it will be allocated to a staff member who may contact you to confirm the details. They will also notify your employer and, in most cases, the person who you allege has been bullying you.

The Commission will decide how best to deal with the matter. Where appropriate, they will mediate to help the people involved agree on a way of resolving the issues. If the problems can’t be resolved at mediation or mediation isn’t appropriate, a hearing or conference will be held.

If the Commission finds that you’re being bullied at work and there’s a risk that it will continue, they can make an order to stop the bullying.

The Commission doesn’t conduct investigations into bullying and can’t issue fines or order compensation for bullying. Investigations into work health and safety practices, including bullying, can be conducted by state and territory health and safety bodies in some circumstances. Visit FW useful links page for a list of these bodies.

 

Go to the Fair Work Commission website for all the information you need. And you may want to visit the Fair Work Ombudsman website as well. You may also want to read our bullying articles.

Update Feb 2015: The Fair Work Commission (FWC) has recently somewhat clarified what it means for a worker to be “at work” when the bullying conduct occurs. Read article: FWC anti-bullying clarifies “at work” when bullying occurs

Bullying or discrimination?

The Fair Work Act has different rules to stop bullying and discrimination.

Discrimination happens when there is ‘adverse action’ because of a person’s characteristics like their race, religion or sex (see Discrimination).

Note: adverse action includes firing a worker, not giving a worker a legal entitlement such as pay and leave, changing a worker’s job to their disadvantage, not hiring someone.

Bullying happens when someone repeatedly behaves unreasonably towards another person or group and that behaviour creates a risk to health and safety. The behaviour doesn’t have to be related to the person or group’s characteristics (race, religion, sex, etc). The behaviour also doesn’t need to be an ‘adverse action’.

What is adverse action

As mentioned above, ‘Adverse actions’ include:

  • firing an employee (worker)
  • not giving an employee legal entitlements such as pay or leave
  • changing an employee’s job to their disadvantage
  • treating an employee differently than others
  • not hiring someone
  • offering a potential employee different (and unfair) terms and conditions for the job, compared to other employees.

What is discrimination

Under the Fair Work Act 2009, discrimination is disadvantaging someone in the workplace because of their:

  • race
  • colour
  • sex
  • sexual preference
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin.

When can discrimination occur?

Discrimination can happen:

  • to someone applying for a job
  • to a new employee who hasn’t started work
  • at any time during employment.

Examples of discrimination

  • being rejected from a job during the hiring process
  • being offered a lower wage or less leave than other employees in the same role with the same experience
  • being verbally or physically abused by an employer or co-worker
  • being isolated or left out by co-workers or managers
  • being paid less than others doing the same job and who have the same experience
  • being given more unpleasant or difficult duties than others in the same role
  • not being given proper equipment or facilities
  • having limited or no opportunities for promotion, transfer or training.

More information about Discrimination:

Useful links

When to contact the police

  • If bullying is violent or threatening it may be a criminal offense and you should contact the police immediately call 000
  • If the situation in not urgent you can call 131 444 for all states and territories except for Victoria where you will need to visit your local police station.

Making a complaint about workplace bullying to the Australian Human Rights Commission

If you are been bullied, harassed or discriminated against because of your race, sex, age, sexual orientation, religion or because you have a disability or are pregnant you can contact the Australian Human Rights Commission. Call 1300 656 419

http://www.humanrights.gov.au/complaints_information/young_people.html

The Commonwealth Fairwork Ombudsman can provide information and advice about Australia’s workplace rights and rules and the protection you have against harassment and discrimination.  Call  131394

http://www.fairwork.gov.au/resources/best-practice-guides/Pages/a-guide-for-young-workers.aspx

Report bullying to a State or Territory work health and safety authority

Your boss has a duty to ensure the health, safety and welfare at work of all their employees. You can report bullying incidences to the following state and territory work health and safety authorities.

Australian Capital Territory

WorkSafe ACT can provide advice and help if you are experiencing workplace bullying call 02 6207 3000 http://www.worksafety.act.gov.au/page/view/1211

New South Wales

Workcover Authority of NSW can provide advice and help if you are experiencing workplace bullying call 13 10 50 http://www.workcover.nsw.gov.au/healthsafety/healthsafetytopics/Psychosocialissues/Pages/Bullying.asp

Northern Territory

NT Worksafe can provide advice and help if you are experiencing workplace bullying. Call 1800 019 115

http://www.nt.gov.au/justice/worksafe/corporate/contacts.shtml 

South Australia

SafeWork SA can provide advice and help if you are experiencing workplace bullying call 1300 365 255

http://www.safework.sa.gov.au/youth/fom_harrassment.jsp

Victoria

Workplace Victoria can provide advice and help if you are experiencing workplace bullying. http://www.worksafe.vic.gov.au/wps/wcm/connect/wsinternet/worksafe/home/safety+and+prevention/health+and+safety+topics/bullying

Queensland

Workplace Health and Safety Queensland can provide advice and help if you are experiencing workplace bullying.  You can call the young workers advisory service 1800 232 000 and a Workplace Bullying hotline 1800 177 717

http://www.deir.qld.gov.au/workplace/workers/youngworkers/index.htm

Western Australia

WorkSafe WA can provide advice and help if you are experiencing workplace bullying. Call 1300 655266
http://www.commerce.wa.gov.au/WorkSafe/Content/Safety_Topics/Bullying/

Other

Lawstuff. To find out about the rights and responsibilities of you and your employer visit the Lawstuff website, click on your state or territory, and go to the ‘on the job’ section

Unions Australia. You can get advice on workplace bullying from the Workers helpline 1300 486 466

Occupational health and safety

Other useful Bullying links

 

2 Responses to “Bullying in the workplace”

  1. The person got real abusive after I came back from my trip to El Salvador and most recently when they asked 59 and older to consider the early retirement deal they were offering and when they were mentioning the conversion of the warehouse and QC going to an out of town warehouse 11 miles away. The person just seemed to unload on me about everything. It just got to where I was sick to my stomach knowing I needed to go to work every night.
    This person who daily remind me that she had been their 17+ years at the company. I was shunned and cut out of the circle by sending me out to do demeaning jobs while she sat criticizing every move I made. The needed information for my training was refused to me and again was reminded that they had been there um-teen years and I was not stepping on their territory on the job.
    Twilight zone is where I thought I was working in this un-real situation that was my nightmare every night to endure. No longer will I let myself be a victim to this kind of behavior. No one should have to tolerate this kind of treatment at any age. My education was brought up on various times and they would constantly down spiral my credentials and continued education.
    I hope as long as I live I never lower myself to treat another human being like this,

    Thumb up 0 Thumb down 0

    • It will happen to them on day don’t worry im a firm believer in KARMA.Some people think their smart just wait till it happens to them they wont know what hit them.

      Thumb up 0 Thumb down 0

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