What is “bullying and harassment?

Under the Fair Work Act 2009 (Cth), a worker is bullied at work if they are subject to repeated unreasonable action which creates a risk to health and safety, by another individual or group of individuals (Part 6-4B of the Fair Work Act). Bullying is also a Work, Health and Safety concern and may be subject to the scrutiny of your state or territory’s safe work regulator (find yours here).

If a worker has been subjected to repeated unreasonable behaviour that poses a risk to their health and safety, they can file a Stop Bullying Application with the Fair Work Commission (see below).

Who is a ‘worker’?

In order to be covered by the anti-bullying laws, a person must be a ‘worker’. To be a classified as a worker, a person must work in a constitutionally-covered business (this includes private corporations and government Departments but not members of the Defence Force. See the full definition here).

The term ‘worker’ is defined in the Workplace Health and Safety Act 2011 (Cth) and includes:

  • an employee;
  • a contractor or subcontractor;
  • an employee of a contractor or subcontractor;
  • an employee of a labour hire company who has been assigned to work in the person’s business or undertaking;
  • an outworker;
  • an apprentice or trainee;
  • a student gaining work experience; and
  • a volunteer (unless the organisation has no employees).

What is “repeated unreasonable behaviour?

The Fair Work Act 2009 (Cth) leaves open the definition of repeated unreasonable behaviour.

‘Repeated’ has been interpreted simply to mean it has occurred more than once. This means that an employee cannot apply for a Stop Bullying order from the Fair Work Commission if the bullying action only occurred on one occasion.

Whether behaviour is ‘unreasonable’ is measured by an objective standard. This means it is not important whether the alleged bully thinks that their conduct was acceptable. Behaviour will be unreasonable if an ordinary person in the circumstances of the case would believe the conduct is not reasonable. Typically, behaviour that will be taken to be unreasonable includes behaviour that is victimising, humiliating, intimidating or threatening.

Examples:

CF and NW [2015] FWC 5272:

Two employees at a small real estate agency made an application to the Fair Work Commission for an order to stop bullying. The employees alleged that the property manager engaged in conduct which included:

  • belittling conduct;
  • swearing, yelling and use of otherwise inappropriate language;
  • daily interfering with and undermining their work;
  • physical intimidation and slamming of objects on their desks,
  • attempts to incite them to victimise other staff members; and
  • threats of violence.

The behaviour was found to be unreasonable and repeated. The Fair Work Commission agreed that bullying had occurred.

Ms Caroline McCutcheon v Fine Wine Wholesalers Pty Ltd; Mrs Veronica Lawrence [2018] FWC 3814

Ms McCutcheon was a Sales Area Manager for a wine wholesaler which sold wine and spirits in the hospitality industry in Western Australia.

Ms McCutcheon made application to the Fair Work Commission claiming that she was bullied by the director of Fine Wines, Ms Lawrence. Although the Commissioner did agree that Ms McCutcheon had been treated unreasonably by Ms Lawrence on one occasion, she ultimately found that the rest of the proven behaviour complained of was ‘reasonable’. This behaviour included:

  • Ms Lawrence informing Ms McCutcheon that she ‘looked good for her age’ and ‘had a better figure and legs than herself’ (in circumstances where there was a blurring of the lines between employee and acquaintance/friend);
  • Ms Lawrence informing Ms McCutcheon that she ‘looked like Barbie’ (in circumstances where Ms McCutcheon was often well groomed);

What constitutes a risk to health and safety?

A worker will not be able to make a Stop Bullying Application about behaviour that is otherwise repeated, and unreasonable, if this behaviour does not amount to a ‘risk to health and safety’. There are three key things to note about the definition of risk to health and safety:

First, what might constitute a risk to health and safety is not limited to behaviour resulting in actual injuries or damage. A Stop Bullying Application only has to show that the repeated unreasonable behaviour posed a risk to the worker’s health and safety. This has been taken to mean that the repeated unreasonable behaviour has created or caused a real possibility of danger to the worker’s health and safety.

Second, the risk to the worker’s health and safety does not have to be a risk to their physical health or wellbeing. It has been accepted by the Fair Work Commission that a risk to health and safety includes a real possibility of the worker suffering a recognised psychological injury as a result of the repeated unreasonable behaviour. This could include, amongst others, behaviour that results in clinically diagnosed depression and anxiety.

Third, the repeated unreasonable behaviour does not have to be the sole cause of the risk to the worker’s health or safety. The fact that there are other contributing factors to the risk to the worker’s health and safety will not necessarily prevent a Stop Bullying Application being successful provided a causative link can nevertheless be established between the repeated unreasonable behaviour and the risk to health and safety.

What is “reasonable management action?

Behaviour will not be considered bullying if it is reasonable management action, carried out in a reasonable manner. Reasonable management action typically includes performance management processes and misconduct investigations provided they are conducted properly and in accordance with all employment policies.

Examples:

Yu and Comcare [2010] AATA 960

A high school teacher argued she suffered a psychological injury in the course of her employment. It was found that the school’s performance management process was not in compliance with lawful procedures and policies that applied at the time and did not afford the teacher procedural fairness. It was therefore found that the school’s actions were not reasonable management action.

Stop Bullying Applications

If a worker reasonably believes they are being bullied at work, they can apply to the Fair Work Commission for an order to stop bullying. There is no time frame for lodging a stop bullying application. After assessing a case, the Fair Work Commission can make any orders that it considers appropriate to prevent the continuation of the bullying behaviour. For example, the Fair Work Commission can make an order that the perpetrators of the bullying cease the repeated unreasonable behaviour, or order a review of the employer’s policy on bullying in the workplace. However, the Fair Work Commission cannot make orders for financial compensation due to bullying in the workplace.

For more information on anti-bullying laws under the Fair Work Act 2009 (Cth) and how to make a stop bullying application, see the Fair Work Commission Benchbook on Anti-Bullying at www.fwc.gov.au.

Contact us for more information.