Workplace Bullying Lawyers FAQs

In many industries, workplace bullying is a persistent and damaging problem, with severe implications for the health and wellbeing of affected employees. Education, childcare, and healthcare industries, as well as not-for-profit organisations are particularly prone to outbreaks of bullying behaviour. It is unlawful to intimidate or harass a fellow employee in the workplace. Bullies in the workplace may attempt to force a victim to resign, or subject them to other forms humiliation or denigration.

Management demanding in a civil way that an employee reach an adequate standard of performance which is reasonable and within the employee’s capability to reach, does not constitute bullying.

A bullied employee may be made to feel isolated, perform an excessive amount of work, or forced to endure threats from fellow employees or management. Bullying sometimes takes place as the result of competition for promotion or other employment opportunities, or due to management needing a scapegoat for their own error or incompetence.

According to the Commonwealth Fair Work Act 2009, section 789FD, a worker is experiencing workplace bullying if:

  • They are bullied whilst they are at work, and that they work in a constitutionally covered enterprise;
  • This bullying may include behaviour or conduct by an individual or group that unreasonably effects the worker, or group of workersto which that worker belongs;
  • The behavior or conduct of the offending individual or group is negatively affecting workplace health and safety;

The above usually does not apply to reasonable action taken by management to address issues with an employee’s performance or behavior.

For something to be considered ‘reasonable’ under the law, it should be ‘reasonable in all circumstances’.

Bullying can occur as an organised attempt to deny an employee an employment right or other entitlement. This is of particular concern for affected employees, as they may feel pressured to resign, lest they be dismissed by their employer. For example, an employer’s business is in decline and revenues are down. Management may impose unreasonable sales targets, and bully those employees who are unable to meet these targets (which are demonstrably unachievable). Affected employees may feel forced to resign, fearing an impending dismissal on the grounds of inadequate performance, when in reality they may be entitled to a genuine redundancy in this case.

Another example of workplace bullying as a tool to prevent an employee from accessing employment benefits is in the form of an older employee, for example, over 50. The employee may have served in their role for 20 years, and accumulated a high amount of sick leave. Management may bully that employee, making them feel worthless or useless. The employee may resign, losing all the accumulated leave and other benefits that come with a long period of service.

Some forms of workplace bullying may entitle an affected employee to greater legal recourse than a bullying complaint made under sections 789FC and 789FF of the Commonwealth Fair Work Act 2009.

It is important that any bullied employee closely examine the circumstances of their case before lodging a bullying complaint, and gather any evidence that may assist their case. This is due to the fact that the employer may be represented by legal professionals who are able to exploit gaps in a bullied employee’s case. Although the cost to submit a complaint to the Fair Work Commission is only $67.80 at the time of writing, this cost may protract into a lengthy, expensive, and exhausting legal battle if the case is not soundly prepared in advance.

Who should make an application to the Fair Work Commission under the Commonwealth Fair Work Act 2009’s bullying provisions?

1. An application should be made as a last resort by an employee who has been bullied and has no other means of remedying the situation. Alternative remedies may include:

  • If the affected employee is bound by an enterprise agreement, they may be able to follow the formal grievance procedure outlined in that agreement;
  • An affected employee may be able to follow formal grievance procedure outlined in their employer’s company procedures and policies. Employees should familiarise themselves with this procedures and policies.
  • There may be a formal grievance procedure detailed in the employment contract of the affected employee, they may be able to follow this procedure to achieve an effective remedy;
  • An affected employee may make a claim to the Human Rights and Equal Opportunity Commission under the Victorian Equal Opportunity Act 2010;
  • An affected employee may pursue a claim under the Victorian Accident Compensation Act 1985, although such claims are often unsuccessful.

2. If you decide to make an application to the Fair Work Commission under the bullying provisions listed in the Fair Work Act 2009, you should be aware that you will need to do so at your own expense. The outcome of a successful application will be that you keep your job, and the bullying ceases. You must consider that the process of making an application is a lengthy, as is the deliberation that will follow. During this time you may have to endure the bullying, which could cause further damage to your wellbeing.
You must also consider whether you really want to remain in your job long term. The Fair Work Commission has published statistics that show as few as 1% of unfair dismissal applicants are reinstated by their employers, even though such reinstatement is the main aim of the commission under the Act. It has been the case that the Fair Work Commission has ordered that an apology be served as a remedy for workplace bullying. There is little value in an apology. Sometimes workplace bullying is only resolved through determining a termination package for the affected employee.

3. You should only make a claim if your technical proficiency in the role is adequate and you can demonstrate that the bullying behavior is repetitive and wholly unwarranted. Those accused of workplace bullying will often accuse a bullied employee of being unable to perform tasks adequately or efficiently. Be prepared to substantiate your credibility as a member of the workplace if you intend to make a bullying claim.

If you believe any colleagues who have witnessed the bullying take place may support you in your case, you should obtain written statements from them prior to making your claim. A psychologist or other healthcare professional may also be able to provide a written report detailing the effects the bullying has had on your personal well being.

To conclude these three points, it may be unwise to lodge a complaint about workplace bullying to the Fair Work Commission if there are more appropriate remedies available.

Prior to lodging a bullying complaint, you should have your case examined by a lawyer as the opposing party will often employ a lawyer to exploit any legal weaknesses of the case.

Bullying as a workplace issue

Behaviour or conduct by an individual or group that is unreasonable and poses a threat to workplace health and safety that is made towards you or a group of employees that you are a part of.

Section 789 if the Commonwealth Fair Work Act provides some examples of behavior that may constitute bullying:

  • Intimidating or aggressive conduct;
  • Humiliating or belittling comments;
  • The spreading of malicious rumors;
  • Playing practical jokes, teasing, or performing hazing or ‘initiation ceremonies’;
  • Deliberate exclusion from work-related functions or events;
  • Setting unreasonable work expectations, including too little or too much work, or work that does not correspond with an employee’s level of skill or experience;
  • Displaying offensive material;

Pressuring another employee to behave inappropriately.

Frequently Asked Questions regarding workplace bullying

I believe I am being micromanaged at work, does this constitute bullying?

Micromanagement occurs when employees are unnecessarily interfered with by managers. This may be in the form of excessive interactions with an employee or their work that occur on a regular basis. This sort of behaviour is usually unwanted. Examples of such behaviour include:

  • Managers constantly requesting updates or reports;
  • Managers requesting to view any/all work produced by you;
  • The review of all correspondence that involves you;
  • Requesting that other people, including other employees or customers/clients provide a review of your performance;
  • Constantly being asked to prove that you’re busy, or what you’re working on;
  • Managers constantly commenting or focusing on areas of your work which you need to improve, even though you may be performing well in other areas.

Workplace bullying and the law

According to section 789(1) of the Commonwealth Fair Work Act 2009, an employee is bullied if an individual or group repeatedly engages in unreasonable behavior or conduct towards that employee or group of employees to which the victim belongs, and that such conduct or behavior poses a risk to workplace health and safety.

Section 789FD(2) of the Act states that reasonable activity undertaken by management to ensure appropriate productivity or performance by an employee does not constitute bullying.

Micromanagement as evidence of bullying

In the case of A.N [2014] FWC 6285 (31 October 2014), the Fair Work Commission found that bullying can in fact be evidenced by micromanagement if that micromanagement is combined with an intention to bully that employee. In this case, the manager was motivated by the desire to dismiss an employee, micromanaged that employee. This conduct was found by the Commission to constitute bullying.

In the case of A.B [20150 FWC 3352 (4 June 2015), the Commission held that management action must be performed in a ‘reasonable manner’. Whether or not action taken by management is deemed to be reasonable can depend on:

  • The nature of the management action;
  • The circumstances and facts that gave rise to the requirement for the management action’
  • The way in which the management action has impacted upon the employee involved.

The Commission held that an increase in performance review or performance management does not constitute bullying, especially if this increase is required to ensure the enterprise’s financial well being.

I’m being bullied at work and believe I might be sacked because of personality conflicts with a manager, what can I do?

Personality conflicts may result from a variety of circumstances or scenarios. Factors at play may include your personality, work ethic, workplace structure or hierarchy, personal ambition, or other personal traits.

Managers seeking to ‘make their mark’ in the workplace may decide that treating employees fairly and decently is less important than promoting their own agenda. A personality conflict may arise if you take exception to some or all of such a manager’s agenda or management style.

Resultant bullying may be in the form of excessive micromanagement of you or your team, or an excessive focus on any alleged minor misconduct, which may be made to seem worse than it actually is.

What can I do?

If you have been harassed or bullied, it is important that you make a complaint to your employer, guided by the employer’s grievance policy and/or procedures. If your employment is bound by a code of conduct, Enterprise Bargaining Agreement, or employment policy, you may be able to refer to these for information regarding grievance procedures.

Enterprise Bargaining Agreement

Employees whose employment is bound by an Enterprise Bargaining Agreement (EBA) may benefit from increased regulation of disciplinary proceedings launched against them prior to termination of employment. It is important that you check whether or not you are covered by an Enterprise Bargaining Agreement. EBAs are commonly implemented in unionised workplaces. An example of procedure laid out under an EBA may be:

Disciplinary procedure

  1. When/where disciplinary action is deemed necessary, a management representative must notify the affected employee of the reason for the action. The first warning may be oral and should be recorded on the employee’s personal record;
  2. If the problem persists, the matter will again be discussed with the employee and a second warning will be given to them in writing and recorded on their personal record;
  3. If the behaviour continues, management must again see the employee and determine whether or not a final warning is to be given. If a final warning is to be given, it must be issued in writing, with a copy sent to the employee’s Union.
  4. If the behaviour continues to persist, the employee may now be terminated with the authority of senior management;
  5. Dismissal of an employee may occur earlier for acts of wilful or serious misconduct;
  6. If any disciplinary action is to be disputed, other than that regarding the termination of any employee who has not yet completed at least six months employment with the employer, the matter shall be referred to Fair Work Australia for it to be resolved. Any resolution will be accepted by the parties as final.
  7. If a 12 month period elapses after any warning without further warnings or action being required, all reports relating to the warning or action shall be removed from the employee’s personal record.

In summary

The first warning may be oral, but is to be recorded on the employee’s personal record. If the problem persists, the matter is to be discussed with the employee and a second warning, this time, written, will be issued and recorded on the employee’s personal record. If the issue is still not resolved, a final warning may be issued in writing, with a copy being sent to the relevant Union.

If the problem reoccurs within 12 months, the employee’s position can be terminated with the authority of senior management. Any dispute arising as a result of disciplinary action must be referred to Fair Work Australia for resolution. Any resolution found here will be accepted by both parties as final.

Any complaint made to your employer by you

Must be investigated fully, and treated confidentially. It is possible that the bullying manager will cease their adverse treatment of you once they are made aware of your feelings, particularly if you demonstrate a willingness to pursue their investigation through official channels.

The wellbeing of employees is important to any good employer, so they will usually investigate any complaints and take appropriate action where required.

If your claim is substantiated by your employer, your employer must take action to ensure that the bullying or harassment stops. This may be achieved by counselling a bullying manager so that they understand what conduct is deemed acceptable and what is not. You may also receive counselling from your employer.

If, upon investigating your complaint, your employer has found insufficient evidence to establish your allegations, you may find yourself at a loss as to what to do next. Your employer may not have found sufficient evidence of bullying to support your claim, or your employer may believe that the manager did not act inappropriately under the circumstances.

In such a case, you may continue to experience harassment or bullying from your manager. In a worst-case scenario, your employer may use the investigation to attack your work or your personal conduct. If this occurs, and you believe you have been harassed and not offered appropriate support or resolution, you may need to consult with an employment lawyer who can provide advice as to your legal rights under these unfortunate circumstances.

Legal options

If, after the above, you continue to experience bullying and harassment, you may wish to lodge a complaint with the Victorian Human Rights and Equal Opportunity Commission. Due to a protected attribute under section 6 of the Victorian Equal Opportunity Act 2010, the Commission will investigate your complaint as a complaint of discrimination. Under section 6 of the Act, protected attributes include sex, race, and political beliefs. Subsection c provides protection for employment activity.

Section 4 of the Act defines employment activity as, an employee, acting in their individual capacity:

  • Making a reasonable request to their employer, in writing or orally for information regarding their employment entitlements;
  • Communicating to their employer that they are concerned that they are not being, have not been, or will not be given some of all of their employment entitlements.

For further questions regarding workplace bullying, please check out workplace bullying lawyer faqs, or call us on (03) 9832 0608 or by email at marketing@lgmadvisors.com.au.