Workplace Bullying

Bullying at work occurs when a person, or group of people, repeatedly behave unreasonably towards another worker or a group of workers at work and that behaviour creates a risk to health and safety.

Unreasonable behaviour includes victimising, humiliating, intimidating or threatening and the test is whether a reasonable person might see the behaviour as unreasonable in the circumstances. It could be between workers, from a supervisor or manager to a worker, or even from a worker to a supervisor or manager.

Bullying does not include reasonable management action carried out in a reasonable manner. An employer or manager can still make decisions about poor performance, take disciplinary action, and direct and control the way work is carried out. However, management action that isn’t carried out in a reasonable way may be considered bullying.

Examples of bullying

• Persistent use of abusive, insulting, or offensive language or aggressive yelling or shouting;
• Unnecessarily interrupting or disrupting an employee’s work or inappropriately interfering with an employee’s personal property or work equipment;
• Repeatedly denying access to information, consultation or resources;
• Continually giving feedback in an insincere or disrespectful manner.

Anti-bullying applications

To make an application with the Fair Work Commission for a stop bullying order, a person must be a worker. This includes an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. If you have already dismissed an employee, they can’t make an anti-bullying application.

Remedies can include any order considered appropriate to prevent further bullying, including an order that you stop specified behaviour, that your behaviour be monitored regularly, that you provide training and support to your workers, or that you review your bullying policy. The Commission cannot issue fines or penalties and cannot award any compensation (but if orders are made and not complied with, penalties may be imposed for non-compliance).

Handling a bullying claim

Employers and businesses have a duty to ensure the health and safety of their workers and this includes providing a workplace free from bullying. From time to time, you may receive complaints of bullying at work. Here are some points you may want to consider.

We recommend that you deal with all bullying complaints as soon as possible, and by managing the situation appropriately, you can hopefully avoid an employee making an anti-bullying application to the Commission.

In the first instance, speak to the employee who is making the complaint and confirm whether they want you to take this further. The employee should be encouraged to put their complaint in writing. If a complaint is not detailed in writing, or specific details regarding the allegation are not provided, it can be more difficult to address or investigate.

At this point you may want to consider whether it would be safe and appropriate to resolve the issues between the parties. If this is not appropriate or the employee would like you to move forward with their complaint, the next step is to investigate their claims. The most appropriate way to do this is usually to meet with the accused employee to discuss. It is a good idea to provide them with notice of this meeting and invite them to bring a support person along, if they wish. The meeting will be an opportunity for you to discuss the allegations of their behaviour and your concerns, and provide them with the opportunity to respond. You may also need to meet with other employees who may have witnessed the alleged bullying behaviour. Once you’ve had the meetings, you’ll then be able to consider any information they have provided before deciding whether you believe the behaviour is bullying or not. We recommend you keep accurate records throughout the process, including claims made, dates and times of meetings, minutes of all discussions, as well as your response to the investigation and any actions you end up taking.

Essentially, the process followed should be the same regardless of who is involved. Your procedure for dealing with a bullying complaint must always be objective, fair and transparent and you will need to be extra mindful of this if you, as the employer, are the one accused of bullying. The person appointed to conduct the investigation should be as neutral as possible and it’s best to address any conflicts of interest before you start.

Possible outcomes of a bullying claim

It is important to take a claim of bullying seriously, but we would caution you against going into an investigation with a preconceived idea of what the outcome will be. We generally recommend that you take your time to consider all parties’ responses before making your decision.

If the results of your investigation conclude that bullying has occurred, a possible outcome or combination of outcomes may include:

• Dismissal
• A warning
• Workplace training on the expected standard of behaviour
• Structural changes to minimise or eliminate the risk of further bullying
• Review practice policies and procedures
• Access to an employee assistance program
• Ongoing monitoring of behaviour

If the outcome of your investigation is that bullying did not occur, there may still be issues that need resolving. There may be a clash of personalities and it’s important to work through this to restore a conflict-free workplace. If you find that the allegations were made vindictively it may be appropriate to take further disciplinary action, in accordance with your practice’s policies and procedures.

Handy tips to prevent bullying in the workplace:

• Create an anti-bullying policy and culture and lead by example
• Train managers to identify bullying behaviour and have difficult conversations
• Communicate with your employees regularly and provide timely and constructive feedback
• Promote productive and respectful working relationships
• Identify and call out bullying behaviours early
• Proactively manage workplace stressors and risks

More information

The Fair Work Ombudsman and SafeWork NSW websites contain further information on workplace bullying as well as some helpful resources including guides for preventing and responding to bullying in the workplace.

If you have any questions or concerns, please contact our Professional Services team on (02) 9439 8822 or professionalservices@amansw.com.au

Disclaimer: The views and information provided in these articles are of a general
nature only and do not constitute legal advice. It is not tailored for your particular circumstances. If you would like specific assistance with issues raised in the article, please contact our professional services team on professionalservices@amansw.com.au. If we are unable to provide specific advice or legal services to you directly (or to do so within your desired timeframes), we would be happy to refer you to appropriate external providers. In that regard, AMA (NSW) has relationships with preferred providers who will generally provide a free initial consultation to our members.