Where a worker has been bullied by an individual or a group in the workplace, the Fair Work Commission has the power to make anti-bullying orders where there is a risk that the complainant worker will likely continue to be bullied at work by said individual or group.
It should be noted that the orders the Commission can make are in respect of enabling the complainant worker to get back to working in a bully-free environment as quickly as possible, as well as taking steps to eliminate any future risks of bullying – the Commission is not able to order any form of monetary compensation.
What is bullying?
Workplace bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work and that individual or group of individuals’ behaviour creates a risk to health and safety.
Workplace bullying is a relatively new jurisdiction, but case law from other jurisdictions provides us with examples of where the Court held bullying to have occurred, such examples which include:
- aggressive or intimidating conduct;
- belittling or humiliating comments;
- victimisation, isolation and ostracism;
- spreading rumours or playing practical jokes;
- unreasonable work expectations; and/or
- upwards bullying – such as where a group of employees bully a team leader.
It is important to note that the unreasonable type of behaviour complained about by the complainant worker must be behaviour that has been repeated to fall into the definition of “workplace bullying”, however, the repeated behaviour doesn’t have to be exactly the same each time. For example, if an employee is in one instance, subjected to belittling comments, and in another instance given unreasonable work expectations, together those two types of unreasonable behaviour could be classified as repeated unreasonable behaviour and therefore bullying where the behaviour causes a risk to health or safety.
Health and safety risk
Some forms of bullying are physical violence, or otherwise, involve subjecting a worker to some form of physical safety risk at their workplace. However, bullying will often also cause psychological and stress-related risks to the complainant worker’s health and safety. If you are a worker who is suffering stress due to bullying in the workplace, although it is not necessary to have a GP’s or psychologist’s diagnosis, this may assist in exposing the health and safety risks that can result from continued bullying.
What’s not bullying?
“Reasonable management action” will not be classed as bullying. What will be classified as “reasonable” in particular circumstances will ultimately depend on the particular facts to the scenario? Action by management, such as performance appraisals, giving warnings or changing a worker’s roster can be considered both reasonable or unreasonable depending on the particular circumstances. It is the Commission’s job to balance the view of all parties involved to determine whether the behaviour complained of is or isn’t reasonable.
Who and where?
Under the current legislation, bullying by “an individual or group of individuals” towards a worker or group of workers is relevant, regardless of whether the “individual or group of individuals” is employed by the same employer as the complainant worker. The important factor is that the alleged bullying occurred at the complainant worker’s place of work (subject to certain limitations, of course, i.e., employees who are not employed by corporations or certain other entities cannot rely on this particular legislation or the process as set out below).
What is the process?
A worker alleging workplace bullying is able to make an application for an anti-bullying order to the Fair Work Commission. Upon receipt of the application, the Commission must commence some form of action in respect of the application within two weeks.
In the first instance, the Commission will send a copy of the application to the employer, and anyone else identified in the application as a “bully”. The employer and any other “bullies” will then have seven days to respond.
Depending on what responses are received, the Commission may choose to refer the application to a conference or mediation between the parties, and/or a more formal hearing. Once the preceding action has occurred, the Commission may make a “stop bullying” order. Of course, such orders may not be necessary if the parties can mutually agree to a solution or a way forward.
What sort of order?
The orders made by the Commission will be tailored to the particular circumstances surrounding the complaint the subject of the application and will depend on the facts presented to the Commission by the involved parties, and the orders sought by the complainant worker.
The objective of making anti-bullying orders is to prevent the complainant worker from being subjected to future health and safety risks which can arise from future bullying.
If the “bully” is no longer in the workplace, then there may be no need for the Commission to make any orders to prevent bullying.
However, if the “bully” is still present in the workplace, orders may be made to ensure that the bully and the complainant worker are rostered onto different shifts, that they report to different persons in the workplace, or that they conduct their work from different locations.
What if I am sacked or I resigned?
If an employee is terminated, they are no longer able to lodge an application with the Commission for anti-bullying orders. There are however other remedies available to the complainant worker in such circumstances, such as unfair or wrongful termination applications, or an application under the general protections of employment law.
How can we assist?
We can answer your questions about the anti-bullying process, including advising you as to whether you can apply for an anti-bullying order and/or whether there are any other applications you can make or remedies available to you. We can assist you with preparing and making an application on your behalf, and assisting you in the conciliation and hearing stage of your application if required.
You don’t have to put up with any form of bullying in the workplace that affects your health and wellbeing.
If you need more information or if you need assistance or advice on how to proceed please call us on (08) 9335 9884 or complete the form below to request an Introductory Consultation.
