Workplace bullying has garnered a lot of attention in recent years and deservedly so. We spend a significant amount of our waking hours in the workplace, and nothing is more disheartening than having to come into a toxic workplace on a daily basis. Victims of workplace bullying can experience significant harm and as a consequence, there are a number of laws in place protecting workers from bullying which this piece will explore, especially in relation to the laws found under the Fair Work Act 2009 (Cth) (the Act).
How is workplace bullying defined?
Section 789FD of the Act defines workplace bullying as repeated unreasonable behaviour towards a worker, group of workers of which the worker is a member, and that the behaviour creates a risk to health and safety.
Looking at what constitutes workplace bullying under the Act, the essential elements are that the behaviour has to be repeated and unreasonable. Therefore, a single instance of unreasonable behaviour may not meet the criteria of bullying. On the other hand, the behaviour which constitutes bullying does not have to be the same repeated action, but rather, it needs to be unreasonable.
What behaviour is considered as unreasonable?
What is considered as “unreasonable behaviour” has not been defined in the Act. However, behaviour that is aggressive, intimidating, threatening, exclusionary or humiliating may be seen to be unreasonable. On the other hand, differences of opinion or personality, both of which can often occur in the workplace, may not be considered as bullying. It should however be noted, that what the law considers as workplace bullying will be assessed on the facts of each individual case.
In determining whether the behaviour is considered as bullying, an objective test is applied where an assessment is made of the expectations of a reasonable person experiencing the same behaviour.
However, it is also important to note that an express exclusion exists in that reasonable management action carried out in a reasonable manner may not be considered as bullying. The test for reasonable management action is objective, and the court will look at the actions taken, against the action of what the court would consider a reasonable person in the same circumstances should, or ought to have taken.
What options are available to an employee who is experiencing workplace bullying?
For any person who is experiencing workplace bullying, an application can be made to the Fair Work Commission (FWC) for an order to stop the unreasonable behaviour. Upon receiving the application, the FWC has 14 days to consider the application. In instances where the FWC believes that a conference will be of benefit to the parties, an application for a conference may be ordered. However, in situations where a conference may not be desirable, a formal hearing will be conducted to resolve an application.