Workplace bullying can result in significantly detrimental consequences for an individual. Accordingly, it is important that both employers and employees understand the laws surrounding workplace bullying.
Who is covered by anti-bullying laws?
Both the Fair Work Act 2009 (‘FWA’) and the Industrial Relations Act 2016 (‘IRA’) contain similar provisions in relation to workplace bullying and anti-bullying claims.
As a general rule, the FWA applies to national system employees and employers (that is, employers and employees in the private sector). The IRA largely applies to Queensland government employees.
An employee/worker will only be covered by the national anti-bullying laws under the FWA if they work at a business or undertaking conducted:
- by a constitutional corporation;
- by the Commonwealth; or
- by a body corporate incorporated in a territory or principally in a territory or Commonwealth place.
Queensland government departments and local councils will generally be covered by the IRA.
What is workplace 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
- the behaviour creates a risk to health and safety.
Some examples of bullying include:
- the use of abusive or offensive language or comments;
- belittling or humiliating comments;
- pressuring someone to behave inappropriately;
- malicious practical jokes;
- unjustified criticism or complaints;
- spreading rude and/or inaccurate rumours about an individual;
- conducting a workplace investigation in a grossly unfair manner;
- excluding someone from work-related events;
- subjecting a worker to unreasonable work demands.
What is not workplace bullying?
Reasonable management action conducted in a reasonable manner is not workplace bullying.
An example of ‘management action’ includes performance appraisals and disciplinary proceedings for misconduct.
Who is a ‘worker’?
Under the FWA, a worker is:
- an employee;
- contractor or subcontractor;
- employee of a contractor or subcontractor;
- 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 work experience student;
- a volunteer (except a person volunteering with a wholly ‘volunteer association’ with no employees).
A member of the defence force is excluded from the definition of ‘worker’.
Does a worker/employee have to prove actual harm to their health and safety to establish workplace bullying?
It is not necessary for an employee to prove actual harm to health and safety provided that a risk to health and safety created by bullying behaviour is demonstrated. A ‘risk’ to health and safety means the possibility of danger to health and safety. The risk must be real and not simply conceptual.
What can a person do if they are bullied in the workplace?
Under the FWA a person can apply to the Fair Work Commission (FWC) for an ‘order to stop bullying’. There is no timeframe for an application of this nature to be made.
An applicant for an ‘order to stop bullying’ must be the person who reasonably believes that they are being bullied at work. It is necessary that the applicant holds an actual and genuine belief which is reasonable.
What orders can be made by the Fair Work Commission?
The FWC has the power to make a wide variety of different orders to ‘stop bullying’ (such as orders not to make contact, not to attend certain areas etc) but it cannot order an employer to make a financial payment to an employee. The purpose of an ‘order to stop bullying’ is not to punish a person but rather to stop the bullying behaviour.
If a party is aggrieved by a decision to make an ‘order to stop bullying’ they may appeal the decision. An appeal must be lodged within 21 days after the date the decision being appealed was issued.
What about State employees?
Employees and employers of the Queensland Government are generally covered by the IRA and matters will be heard in the Queensland Industrial Relations Commission (‘QIRC’). As with the FWC, the QIRC can make a broad range of orders to stop the bullying but it cannot make an order requiring the payment of a pecuniary amount to prevent the employee from being bullied in the workplace.
Workplace bullying laws and applications for ‘stop bullying’ orders can be complex and difficult. Strict time limits apply for respondents who are responding to such claims and legal advice should be obtained. Should you wish to obtain legal advice in relation to a workplace bullying matter, you should contact a Gilshenan & Luton employment lawyer who will assist you.