Workplace bullying has many forms. Some are subtle. Sometimes it involves positive actions, sometimes it doesn’t. Generally, bullying occurs when one or more co-workers put another employee into difficult situations. More often, bullying takes the passive form, like excluding one particular employee from daily social conversations with other employees.
The Legal Definition
Pursuant to s 789FD(1) of the Fair Work Act 2009 (Cth), a statutory definition of workplace bullying is outlined as:[1]
(1) A worker is bullied at work if:
(a) While the worker is at work in a constitutionally covered business:
(i) An individual; or
(ii) A group of individuals;
Repeatedly behaves unreasonably towards the worker, or a group of worker of which the worker is a member; and
(b) That behaviour creates a risk to health and safety.
It must be noted that each matter must be treated distinctly as many circumstances may be similar by way of intention but are different in facts. Matters that may constitute workplace behaviour must be treated on a case-by-case basis.
Remedy to this behaviour can be made by way of a formal or informal complaint to a higher position in the workplace for investigation and review. However, this avenue may be restricted or unavailable when cases of workplace bullying are excused by individuals in a higher position.
Seeking Legal Advice
When internal review of workplace bullying is unavailable, seeking legal redress by way of advice from legal practitioners is the next avenue against workplace bullying. The case of Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 sets out the legal principles for ‘victims’ the options to seek “Stop Bullying Orders” and “General Protections Claims” as legal remedies.[2]
To seek for a Stop Bullying Order, an application must be made to the Fair Work Commission (“FWC”). The application form will require the following information:
- Your contact details;
- Your representative’s contact details;
- Employer details (a contact person and their direct contact details);
- The details of the ‘alleged’ bully with their name;
- The behaviour believed to be bullying;
- At least 2 circumstances where bullying has occurred;
- How the bullying creates a risk to your health and safety;
- What you have already done about the behaviour;
- If you have reported the behaviour to any other organisations;
- If your manager has started performance management or disciplinary action; and
- What you need things to happen.
For further clarification of your rights, available actions to be taken, and whether you qualify for certain applications, please feel free to contact our Employment Lawyers for expert legal advice.