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What is Workplace Bullying?

Workplace bullying is repeated, unreasonable abuse from an employee to another employee and can also impact groups of people. The behaviour can be physical, emotional, social, psychological or verbal.

Workplace bullying statistics for 2021 show that two-thirds of Australians have been affected by workplace bullying. Bullying not only damages the mental and physical health of employees. Further, there is strong evidence that it weakens institutions. And it can undermine productivity and innovation and poisons workplace culture.

That’s why both employees and employers need to know all they can about workplace bullying.

In this article, workplace lawyer, Micaela Diaz at Prosper Law, helps employers and employees understand what workplace bullying is, what it is not, how to deal with it and how to address it.

Prosper Law is an employment law firm. We help both employers and employees manage workplace bullying, unfair dismissal or adverse action matters, prepare and negotiate employment contracts and general employment legal advice. Call us today on 1300 003 077 for a fixed fee quote.

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What is Workplace Bullying?

Workplace bullying is repeated, unreasonable behaviour toward an employee or group of employees that poses a risk to health and safety.

Some examples of bullying behaviour are:

  1. threatening or aggressive behaviour 
  2. humiliating, insulting, or name-calling comments by anyone 
  3. lots of practical jokes
  4. spreading mean and unkind rumours 
  5. not inviting someone to work events 
  6. irrational work expectations such as too much or too little work
  7. showing offensive material about someone or something that puts pressure on someone to do something inappropriate or behave in an inappropriate manner
  8. abuse of power (showing someone power unnecessarily)

How can workplace bullying occur?

Workplace bullying can occur in various ways, including verbal or physical abuse, emails, text messages, Internet chat rooms, instant messaging, or other social media channels. In some cases, workplace bullying can also occur outside the workplace. 

Workplace bullying may be directed at an individual or a group of workers. It may be perpetrated by one or more individuals.

person laughing at a man in white top

It can occur: 

  1. sideways between workers, 
  2. from supervisors or managers to workers, or 
  3. from workers to supervisors or managers.

Additionally, workplace bullying may also be directed at or perpetrated by others, such as customers, patients, students, clients, and members of the public.

Impact of workplace bullying

Workplace bullying can harm the person experiencing it and those who witness it. However, the effects vary according to individual characteristics as well as the situation. Those effects may include one or more of the following: 

  1. anxiety, fear, panic attacks, or sleep disturbances 
  2. physical discomforts, such as muscle tension, headaches, fatigue, and digestive problems 
  3. decreased work performance, concentration, and decision-making ability 
  4. loss of self-esteem and self-confidence 
  5. feelings of isolation
  6. deterioration of relationships with co-workers, family, and friends
  7. depression, and 
  8. suicidal thoughts.

Case law examples of workplace bullying

D’Souza [2021] FWC 1364

To read the court decision in D’Souza – click here, but here’s a summary:

  • Ms D’Souza was employed by Woolworths as a night filler
  • She claimed to have been bullied by a manager and applied to the Fair Work Commission for a ‘stop bullying order’
  • She had had an aggressive argument with one manager and gave other examples of bullying incidents that occurred after May 2019.

The Commission held that so long as the workplace arrangements that Woolworths had in place continued, Ms D’Souza would continue to be bullied. As a result, the Commission ordered that Woolworths place her in a different part of the business. The Commission also commented:

The evidence of Ms D’Souza, which I accept, is that because of her experiences in the workplace, including the instances of unreasonable behaviour that had occurred, she has experienced depression, stress, and anxiety. The consequence has been her having to take sick leave. Her evidence is she has also been diagnosed with a psychological disorder.

At times, Ms D’Souza has been discourteous, disrespectful, argumentative, and unreasonably critical of those to whom she reports. For example, Ms D’Souza’s own account of what was said during the incident with Mr Burrows on 17 May 2019 is properly characterised as a full-blown argument during which she forcefully challenged and verbally attacked her manager on multiple occasions. Her behaviour does not excuse Mr Burrows unreasonable behaviour during that argument but is a likely explanation for it.

Therefore, it is clear from the decision that workplace bullying can still occur even if the recipient’s engages in poor behaviour.

Ferguson v Strautman Australia Pty Ltd [2009] VCC 184

In this case, a worker wanted to take leave from work. The reason was that he needed to recover from the mental harm that had been caused due to two of his senior colleagues bullying him.

The bullying, in this case, involved a high workload, racist remarks, name-calling, insults, failure to assist when requested, and also not getting any safety equipment after many requests.

The employer’s approach to performance-related problems and following the health and safety norms was clearly considered unreasonable and improper. Therefore, the Court stated that the victim had to be remunerated for the mental injury they suffered.

National Australia Bank Ltd v KRDV [2012] 204 FCR 436

The employer carried out meetings each week to discuss the workloads of its employees so that it could plan work.

At one such meeting, an employee was reprimanded in front of others for his poor performance. The employee demanded compensation, stating that he suffered mental injury and trauma after he was ‘singled out’ by his manager and humiliated (personal criticism) in front of his colleagues.

The employer declined the claim. NAB stated that his condition was due to reasonable management action taken by the employer.

However, the Court declared that the administrative action taken by the employer was unreasonable. This was because the meeting was not organised to discuss the employee’s performance but to discuss workload.

Yu and Comcare [2010] 121 ALD 583; [2010] AATA 960

In this case, a high school teacher asked for compensation for the psychological injury that happened because of the application of some specific performance management operations.

Her workplace turned down her claim based on the argument that she suffered the injury because of reasonable management action.

crop faceless female counselor talking to client

However, the Administrative Appeals Tribunal accepted the claim, because the employer did not follow its own policies in carrying out the performance management process.

In addition, the Tribunal also found out that the employer was not able to provide any evidence of the underperformance of the teacher. The employee was also refused any procedural fairness.

Thus, the tribunal stated that the management action taken was unreasonable and also that the lack of record-keeping was detrimental to the employer’s case.

What is NOT Workplace Bullying?

Bullying is not acceptable in the workplace.

However, a single incident of unreasonable behaviour is not workplace bullying. But it may be repeated or escalated. Therefore, employers should pay attention.

Reasonable Management Action taken in a Reasonable Way

Reasonable management action taken in a reasonable manner is not bullying. An employer or manager may:

  1. make decisions about poor performance;
  2. take disciplinary action;
  3. direct and control the way work is performed.

These actions are not considered workplace bullying if they are lawful and reasonable. What is reasonable would be determined by a court through an objective test.

However, a court might consider the following examples to be reasonable management actions:

  1. setting realistic and achievable performance goals, standards, and deadlines 
  2. fair and reasonable assignment of duties and hours 
  3. transferring an employee to another area or role for operational reasons 
  4. deciding not to select an employee for promotion, provided a fair and transparent process is followed 
  5. providing honest, fair and constructive notification to an employee of unsatisfactory job performance 
  6. objectively and confidentially notifying an employee of inappropriate conduct
  7. implementing organizational changes or restructuring, and 
  8. taking disciplinary action, including suspension or termination of employment, if appropriate or justified in the circumstances.

Put simply, under the “reasonable person” test, one must answer the question:

Would a reasonable person anticipate the possibility that the conduct would offend, humiliate or intimidate the other person?

If the answer is yes, the test is met, and the behaviour will likely be workplace bullying. However, if the answer is no, the test is not met, and the behaviour cannot be considered workplace bullying.

If you are unsure what is not bullying, it is always best to seek legal advice from a workplace lawyer.

Case law examples where a bullying claim was not made out

Devasahayam and Comcare [2010] AATA 785

In this case, a worker alleged mental damage from issues such as having had no performance appraisals, not being promoted, and being repeatedly humiliated in front of others.

However, the employer declined the claim stating that the employee’s experience was because of the reasonable management action taken in an acceptable way.

Because the company followed all policies and guidelines, regarding the case, in a correct way, the decision of the employer was supported by the Administrative Appeals Tribunal. The employee failed to successfully make out a claim for workplace bullying.

Ferguson and Commonwealth Bank of Australia [2012] AATA 718

In this case, an employee demanded compensation for depressive disorder due to alleged bullying and harassment at work. According to the employer, they hired a new manager for an underachieving branch. The manager conducted private meetings with every member or employee, to discuss their performance.

On the other hand, the employee found the employer’s conduct in the meetings rude and insulting. As a result, the employer declined the payment of compensation because the employee’s condition was due to the management action that was taken reasonably.

This decision was upheld by the Administrative Appeals Tribunal and the employee failed to establish that the meetings amounted to workplace bullying.

Protection from bullying in the workplace

All businesses and organizations in Australia must ensure their employees are not exposed to health and safety risks in the workplace. This includes having systems in place to prevent and respond to workplace bullying

The laws to stop bullying under the Fair Work Act only apply to certain workers in Australia. A worker includes:

  1. an employee 
  2. a contractor or subcontractor 
  3. an outworker
  4. an apprentice or trainee 
  5. an intern
  6. a student gaining work experience 
  7. some volunteers.

If an employee reports bullying, the law requires the employer to go through a proper grievance procedure.

How can an employee deal with workplace bullying? 

Document Everything

Employees must keep a record of what happens in the workplace if they are bullied. They may write down details of the bullying incident(s), the name of the bully(s), and the date and time of the incident(s).

Record as many details as possible, including the names and addresses of people who witness the bullying. Employees should keep copies of relevant documents and remember that diaries or journals may be used as evidence in court.

Get Help and Advice on workplace bullying

Employees can also seek advice and information from government agencies in their state or territory. However, they must know that government agencies do not give legal advice to employees.

Make a Complaint against workplace bullying

Employees should contact their supervisor or workplace health and safety representative to report bullying incidents. They may discuss bullying incidents with them by filing formal or informal grievances.

A workplace lawyer often advises resolving and stopping bullying incidents through the employer, if possible, before taking legal action.

Speak to the Bully about workplace bullying

Workplace bullies are sometimes unaware of the impact of their behaviour. Talking to the bully can help them stop bullying.

Therefore, an employee can also talk to the bully about their behaviour. However, this should only be done if the employee can do so and after receiving advice.

In the worst case scenario, after talking to the bully to stop it and the employer does not address the problem, the employee can contact a workplace lawyer to explore all legal options.

Unfair Dismissal

Sometimes an employee loses his job after complaining about workplace bullying. Moreover, even if the employee believes he had to resign because of the complaint, he may have a right to claim under the provisions of the Workplace Relations Act 1996(8).

In such cases, the employee should contact a workplace lawyer to help with the process.

Obligations of an Employer after they receive a Workplace Bullying Complaint from an Employee

When an employee informs his workplace that he is experiencing bullying, the employer should:

  1. respond to the employee as soon as possible
  2. take the report seriously
  3. inform the employee how it will be dealt with
  4. ensure that everything is kept confidential
  5. allow each employee to explain their version of events
  6. do not take sides
  7. tell the employee what support they can receive
  8. allow the employees to bring another person to the discussions, e.g. a friend or union representative
  9. keep records of discussions, meetings and interviews
  10. try to resolve matters and inform the employee of the outcome.

The employer must respond to the application within seven days, which must be in Form F73.

How can an employer prevent workplace bullying?

Here are some practical tips for employers to prevent workplace bullying:

Zero tolerance policy for bullying

Employers should set the tone when they hire an employee – on the day of Induction. Make it clear that the company will not tolerate workplace bullying and explain how inappropriate behaviour will be handled.

Positivity in the workplace

Employers must strive to create a workplace with a positive atmosphere. This is because if people enjoy coming to work, they support each other, and everyone feels encouraged and valued.

Reasonable expectations

Employers should be reasonable about what they expect from their employees on any given day. Simply because they want to put in a 10-hour day, they do not have the right to demand that of their employees. Especially not if they do not get a share of the profits or a performance bonus! 

Communicate clearly

Employers should always be clear when communicating with their employees. In other words, they need to say what they mean and mean what they say. When employees know what is required or expected of them, they are more likely to deliver the result and less likely to feel that they are being set up to fail.

Be supportive

Employers need to be supportive of their employee’s lives outside of the office. Everyone needs understanding and support from time to time.

Make sure workplace stressors and risks are reduced

Poorly defined roles and work systems are risk factors for bullying. Employers need to ensure that their employees understand their roles and have the appropriate skills and resources to do their jobs. This helps reduce problems and conflicts that could lead to bullying.

Develop a respectful workplace

Employers should focus on developing respectful workplace relationships by promoting a positive leadership style by training managers and supervisors to communicate effectively and involve employees in decision-making. Moreover, they should encourage regular and honest performance feedback that is given respectfully.

Training for senior management

Employers should train all managers to recognize the signs of bullying, confidently enforce anti-bullying policies, and understand that ignoring bullying behaviour will not be tolerated.

Implement confidential reporting and response procedures

Employers can implement confidential reporting and response procedures if bullying occurs, treating all matters seriously. Those policies and procedures must protect anyone who reports or witnesses workplace bullying from victimization. All such policies must be communicated to employees, so they know where to go and what to do.

How to respond to accusations of workplace bullying?

Being accused of bullying behaviour can be upsetting and come as a shock. However, employees accused of workplace bullying must be open to feedback from others and, if necessary, be prepared to change their behaviour.

Here are some points for them to keep in mind:

Give the Complaint Serious Consideration

When someone calls an employee about his behaviour, they must try to remain calm and avoid aggravating what is probably already a difficult situation. They must listen carefully to the concerns expressed. Afterwards, discuss how they can work together more effectively. The other person is more likely to share their views with the employee if they choose a neutral space and ask open-ended questions without trying to justify their behaviour. Still, the other person may not feel comfortable talking to them.

Seek an Objective Opinion about the Behaviour

Employees who do not understand the complaint or want a second opinion about their behaviour should discuss the matter with someone they trust. This may be their supervisor or a counsellor engaged through the organization’s employee assistance program. All such discussions must be confidential. It is important to avoid unwanted escalation of the situation by addressing the problem openly.

Adjust Unreasonable Behaviour

Employees who are made aware that their behaviour is unreasonable should cease or modify it and reconsider their actions. If, after careful consideration, they believe that their behaviour is reasonable management action, they should discuss it with their supervisor, manager, or HR. Even under these circumstances, it may be possible to modify future management actions to minimize the risk that others may find unreasonable.

If the employee is found to have continued to bully someone after the bullying behaviour was brought to his attention, his persistence or failure to change his behaviour will likely be taken into account in disciplinary or other proceedings.

Vicarious liability of employers

Employers must take reasonable steps to establish a good standard of care and adequately train and educate their employees in this regard. Moreover, employers must be sensitive to and respond to employee complaints of workplace bullying. If nothing is done, employers may be considered part of the problem and face legal consequences as they are vicariously liable.

Vicarious liability refers to an employer’s liability for the actions of its employees. If there is a connection between an employee’s harmful actions and their employer, the employer may be held liable.

For an allegation of vicarious liability to be recognized, it must be shown that there was a connection between the wrongful act (bullying) and the fact that the employee was acting on their own initiative or performing his duty as an employee.

In Keegan v Sussan Corporation, Ms Keegan’s supervisors did not take appropriate action when she complained of workplace bullying and harassment. As a result, Ms Keegan was found to have suffered psychological harm, and the court awarded her $240,000 in damages.

To avoid becoming involved in vicarious liability claims, employers must do everything in their power to keep their employees about acceptable workplace behaviour.

What if the perpetrator didn’t intend to bully the other person?

When it comes to workplace bullying, the intent of the perpetrator is irrelevant. Ultimately, it does not matter if the person was just joking or if what they said was wrong. If the recipient of the conduct was insulted, humiliated, or intimidated (and a reasonable person would expect this), the conduct is workplace bullying.

A workplace lawyer understands whether the intention is irrelevant and can provide comprehensive legal advice on workplace bullying.

A rule of thumb for workplace bullying

If an employee wouldn’t behave in a way towards their mum, sister, or grandmother, that behaviour is probably not acceptable in the workplace.

What should a co-worker do if they witness bullying?

Employees should not become silent witnesses to workplace bullying. Those who witness bullying have a moral obligation to report it and help create a positive and safe workplace. Otherwise, bullying can affect organizational dynamics, group cohesion, communication among colleagues and overall performance. 

Moreover, employees who witness bullying may also suffer negative effects, i.e., anxiety, stress, and emotional exhaustion. Therefore, when someone witnesses workplace bullying, the witness can help the victim by making them aware of ways to report and stop the bullying.

Employees can report workplace bullying verbally or in writing, including by:

  1. informing their supervisor or manager, 
  2. informing their union representative and asking them to make a report on their behalf or
  3. using other established reporting procedures.

Where to get workplace help?

For employees

In the workplace

Employees facing workplace bullying can talk to:

  • a supervisor or manager
  • a health and safety representative
  • the human resources department
  • a union
  • a lawyer.

Visit the Unions and employer associations page to find registered unions. 

Fair Work Commission

Employees who are still employed can take the FWC’s anti-bullying eligibility quiz. Those who are eligible can lodge a stop bullying application with the FWC

Fair Work Ombudsman

If the person’s bullying doesn’t stop after the stop bullying order is made, the victim employee can contact Fair Work Ombudsman for help. 

Australian Human Rights Commission

National bodies, including the Australian Human Rights Commission (AHRC), can also help against workplace bullying

The Australian Human Rights Commission accepts complaints about workplace bullying, harassment or discrimination covered by federal discrimination laws, including sex, disability, race and age discrimination. The AHRC also has specific complaint handling functions for complaints about discrimination on the basis of irrelevant criminal records and religious belief discrimination in employment. The AHRC uses conciliation between parties to reach a resolution.

Other bodies that can help with workplace bullying

Employees can also contact

These bodies can provide:

For employers

Employers can refer to the following materials to prevent bullying at work:

How can Prosper Law help?

Prosper Law is Australia’s online law firm. We provide legal advice to businesses and individuals across Australia. Our areas of legal practice include contracts, eCommerce, publishing, legal counsel and employment law.

If you need to talk to a workplace lawyer, get in touch today.

Contact the team at Prosper Law today to discuss how we can provide you with advice for a fixed fee.

Micaela Diaz | Solicitor

PROSPER LAW – Australia’s Online Law Firm

P: 1300 003 077

W: www.prosperlaw.com.au

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