Bullying and the workplace

Employees, who have been bullied at work, may now bring proceedings in the Fair Work Commission to resolve that problem.

In order to bring a claim, the applicant must reasonably believe that he or she has been bullied. Reasonable management action conducted in a reasonable manner does not constitute bullying.

A worker is bullied at work, if whilst at work, a person or group behaves unreasonably towards that worker and that behaviour creates a risk to health and safety.

There is no limit on the number of applications a worker may bring, and workers are also entitled to bring separate applications under State, Workplace Health and Safety legislation.

The Commission has no power to make a monetary award to a worker if the bullying claim is established. The main purpose for the Commission is to try and restore working relationships. It is expected that the Commission will mainly make orders to prevent bullying occurring in the workplace, as there is no express obligation to attempt to mediate or conciliate the anti-bullying behaviour, but the Commission does have power to do so.

Typical orders that the Commission might make are:-

• To cease specified behaviour;
• For an employer to monitor future behaviour
• For an employer to enforce any of its policies;
• For an employer to provide information, support or training, or
• For an employer to review its policies and practices.

In order to avoid legal proceedings, employers need to deal with any allegation of bullying promptly. Care must be taken to ensure that any investigation is fair and reasonable, and show that the employer is vigilant in combating bullying. There is an inherit problem for an employer in being transparent in those investigations, but at the same time where appropriate to ensure confidentiality. However if the alleged bullying behaviour has been observed openly by others, the need for confidentiality would seem obsolete. Dealing promptly with such allegations will either reduce or stop the reoccurrence of the alleged behaviour depending upon the severity of the allegation and will assist the employer in restoring harmony amongst their workforce.

These matters require delicate handling, so legal assistance may be required to ensure that claims are not brought before the Commission, and/or unfair dismissal claims from employees who may have their services terminated as a result of the allegation.