Workplace bullying: what counts, and where it can go

The three-part test

The Fair Work Commission sets out the definition as three conditions, and all three have to be met:

1. Behaviour

   A person or group behaves unreasonably towards a worker or group of workers at work.

2. Repetition

   It happens more than once.

3. Risk

   It creates a risk to health and safety.

Safe Work Australia adds that some bullying is indirect, such as leaving someone out of activities on purpose, and that it can be subtle and hard to spot. Several items on these lists, such as too much or too little work, are also psychosocial hazards in their own right: see psychosocial hazards at work.

What is not bullying

Not everything that upsets someone at work meets the test. A comment made once and not repeated is not bullying. Nor is disagreement, though Safe Work Australia warns that conflict left unmanaged could escalate into bullying.

Managers can also act on performance and conduct. The Commission lists as reasonable management action things such as starting a performance improvement plan, taking disciplinary action for misconduct, telling a worker their performance or behaviour is not acceptable, and asking for reasonable duties. The catch is in the manner: the action must be reasonable and so must the way it is carried out, and actions that are not, if repeated, could still be bullying.

Two neighbouring problems have their own rules. Under the Fair Work Act, sexual harassment can be a single event and does not need a risk to health and safety, unlike bullying; and discrimination, which bullying need not involve, is dealt with under protections against adverse action.

Preventing it: a WHS hazard like any other

Under the model WHS laws, a person conducting a business or undertaking must manage the risks of bullying, treating it as it would any other workplace hazard: identify, assess, control and review, in consultation with workers and any health and safety representatives.

Safe Work Australia’s suggestions for finding out whether it could happen include consulting workers regularly (an anonymous survey may suit some businesses), holding exit interviews, and watching incident reports, workers’ compensation claims, absenteeism, sick leave, staff turnover and grievances for patterns or sudden changes. For controls it points to a safe physical and online work environment, safe systems of work, clear policies, and information, training and supervision.

Workers have a part too: they must cooperate with reasonable policies and procedures, such as a workplace bullying policy. Where the abuse is online, Safe Work Australia points to the eSafety Commissioner, which has guidance for employers on online abuse and harassment at work.

If it is happening: the path

1. At work, if it is safeThe Commission suggests getting support from someone trusted, and, if it feels safe, telling the person their behaviour is inappropriate, though no one has to do that before coming to the Commission. Inside the workplace, a supervisor or manager, human resources, a health and safety representative or a union representative may help, and a formal complaint under the workplace’s own policy is an option.
2. The WHS regulatorThe Commission says many local authorities can help with complaints about workplace safety, and lists the WHS authority for each state and territory, with Comcare for Australian Government employees.
3. The Fair Work CommissionAn eligible worker can apply for an order to stop bullying. The Commission sends the application to the employer or principal and to the people named, and asks them to respond within 7 days. It aims to contact everyone within 2 weeks of receiving the application.
4. Conciliation, conference or hearingSome cases start with a voluntary conciliation; most go to a Commission Member, who tries to resolve the case in a conference or formal hearing. The Commission aims to finalise most cases within 16 weeks.
5. The decisionThe Member decides, and the Commission publishes the decision on its website, including the names of the parties. An appeal needs the Commission’s permission.

Where the behaviour involves allegations of physical assault or damage to property, the Commission says to contact the police.

What an order can and cannot do

From the Fair Work Commission’s page on how it helps stop workplace bullying

After a hearing, a Member can order	The Commission cannot
the people involved to stop the bullying	order anyone to pay financial compensation
compliance with, or a review of, the employer’s bullying policy	order disciplinary action
the employer to give workers information, support and training	punish anyone or end someone’s employment

An order is made only where there is a risk the bullying will continue, and the Commission says most cases are resolved without a hearing. If someone does not comply with an order, the Fair Work Ombudsman can help.

Who the national laws cover

To apply, a person must be a worker (which includes contractors, labour hire employees, apprentices, students on work experience and volunteers), in a constitutionally covered business such as a proprietary limited company or the Australian Government, still working in (or connected to) the workplace, and experiencing, or at risk of further, behaviour that creates a risk to their health and safety. The national laws may not cover people who work for a sole trader or partnership, a state government department, some state public sector agencies and some local governments, or a corporation without significant trading or financial activity, and they do not cover members of the Defence force.

The Commission notes that state or territory laws may still protect people the national laws miss, and the Fair Work Ombudsman says each state and territory WHS body can advise on workplace bullying. The legal duties underneath all of this are in the WHS duty of care, and what bullying can do to a person’s health is part of mental health at work.