Workplace bullying is a serious issue in Australian workplaces, but not every difficult interaction at work qualifies as bullying under the law.
The Fair Work Act 2009 (Cth) makes it clear that employers are entitled to manage staff, provided they do so reasonably. This is known as the reasonable management action exception.
In this guide, our employment lawyers explain the difference between workplace bullying and reasonable management action, explore the legal framework and case law, and provide practical insights for both employers and employees.
Key Takeaways
Workplace bullying occurs when unreasonable behaviour is repeated and creates a risk to health and safety.
Not all negative experiences at work amount to bullying – the law draws a clear line with the reasonable management action exception.
Reasonable management action includes performance reviews, feedback, or disciplinary steps, provided they are carried out fairly and lawfully.
The Fair Work Commission applies an objective test to assess whether conduct is bullying or legitimate management.
Employees may seek a stop-bullying order, but the jurisdiction is forward-looking and does not provide compensation.
What the Law Says About Workplace Bullying
Under section 789FD(1) of the Fair Work Act 2009 (Cth) (the Fair Work Act), a worker is bullied at work if:
The behaviour is repeated, not a one-off incident;
The behaviour is unreasonable, meaning a reasonable person would consider it unfair or inappropriate in the circumstances; and
The behaviour creates a risk to health and safety.
Unreasonable behaviour can take many forms. It may be obvious, such as verbal abuse or humiliation, or more subtle, such as excluding someone from team activities, spreading rumours, or isolating them from workplace communication.
However, the legislation is equally clear about what does not constitute bullying. Section 789FD(2) of the Fair Work Act states that “reasonable management action carried out in a reasonable manner” is not bullying.
The Reasonable Management Action Exception
Employers must be able to manage staff, allocate work, set performance expectations, and discipline employees when necessary. If every form of management action could be called bullying, it would be almost impossible to run a business.
Reasonable management action includes:
Giving constructive feedback about performance.
Implementing a performance improvement plan.
Investigating complaints or misconduct in line with workplace policies.
Disciplinary action, where justified.
Making workplace changes, such as restructuring or reallocating duties.
The key requirement is that the action is both reasonable in nature and carried out in a reasonable way. For example, giving performance feedback is reasonable, but shouting at an employee in front of their colleagues while doing so would not be.
The Fair Work Commission has made it clear that management action does not need to be perfect or handled in the most ideal way possible. Instead, the test is whether it was lawful, rational, and proportionate in the circumstances.
Case Law Examples: Drawing the Line
Management Action Considered Reasonable
In Green v NT of Australia No. 2 [2022] NTLC 23, an employer investigated inappropriate workplace behaviour by following its policies and procedures. The Commission found this was reasonable management action, not bullying, even though the employee being investigated felt aggrieved.
Similarly, in Application by Cao [2016] FWC 5592, Commissioner Hampton emphasised that management action does not need to be ideal to be considered reasonable. What matters is that it is lawful and not irrational, absurd, or carried out in bad faith.
Conduct Considered Bullying and Not Reasonable
On the other hand, in Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774, behaviour such as intimidation, sarcasm, humiliation, and victimisation was identified as bullying. This kind of conduct went beyond management action and created risks to health and safety.
Another area of concern arises when performance management processes are used as a pretext to force someone out of the business. If performance plans or disciplinary procedures are applied in a way that is unfair, inconsistent, or targeted with a predetermined outcome, the conduct may be viewed as bullying.
Practical Guidance for Employers and Employees
The Fair Work Act strikes a careful balance between protecting employees from bullying and recognising the right of employers to manage their workforce. The reasonable management action exception provides clarity, but the way management decisions are carried out remains critical.
For Employers
Document the reasons for management decisions.
Follow internal policies consistently.
Provide feedback respectfully and privately.
Avoid using performance management as a tool for termination.
For employers, the key lesson is to manage staff fairly, consistently, and respectfully.
Employers also need to ensure that their management actions are not considered adverse action. To better understand protections against adverse conduct at work, check out our article – What Is Adverse Action? – it breaks down employee rights under the Fair Work Act and how they apply in practice.
For Employees
Keep records of repeated unreasonable behaviour.
Understand that fair feedback and lawful direction may not constitute bullying.
Apply to the Fair Work Commission for a stop-bullying order if behaviour is ongoing and poses a health risk.
For employees, the important takeaway is that not every form of management amounts to bullying, but genuinely unreasonable behaviour that affects your health and safety can and should be addressed.
Frequently Asked Questions
What is workplace bullying under Australian law?
Workplace bullying occurs when an employee is subjected to repeated, unreasonable behaviour that creates a risk to health and safety. It goes beyond one-off conflicts or disagreements.
Can performance management amount to bullying?
Yes, if it is conducted in an unreasonable or targeted manner. However, constructive and fair performance management is protected as reasonable management action.
Employees can learn more about their workplace safety entitlements in Psychosocial Hazards at Work & Employee Rights, which highlights how stress, bullying, and other psychosocial risks are handled under Australian law.
Can I get compensation through the Fair Work Commission for bullying?
No. The Fair Work Commission can make orders to stop bullying, but it does not award compensation. Compensation may be sought separately through workers’ compensation or other legal claims.
How does the Commission decide what is “reasonable”?
The Commission applies an objective test, considering the circumstances leading up to the management action, the way it was carried out, and whether it was proportionate and lawful.
The Commission will assess whether bullying has occurred or is likely to continue. If the behaviour is found to be bullying, it may issue orders to prevent further harm. These orders may require changes in workplace conduct or procedures.
As an employer, how do I make sure my management action is considered reasonable?
Follow your workplace policies consistently, document decisions, give employees an opportunity to respond, and deliver feedback privately and respectfully.
For businesses looking to prevent issues before they arise, our post on Anti-Bullying and Harassment Policies and Procedures outlines effective frameworks and best practices to foster a respectful and compliant workplace.
Can employers be penalised if they confuse management action with bullying?
Yes. If what is presented as “management action” is in fact unreasonable or targeted behaviour, the employer may face legal risks including stop-bullying orders, reputational damage, and potential workers’ compensation claims.
What should I do if I feel I am being bullied?
Raise the issue internally first, such as with HR. If the behaviour continues, you may apply to the Fair Work Commission for a stop-bullying order.
If you are dealing with workplace bullying or need advice about reasonable management action, Prosper Law’s experienced employment lawyers can help you understand your rights and obligations under Australian workplace law.
