Workplace Bullying : A Legal Perspective and Preventive Strategies

By Estephen Bugarin

Introduction

The topic of workplace bullying has been previously addressed in one of our prior publications on our website. It provided a brief outline of what may constitute workplace bullying under the legislation and examples of legal remedies that may be explored when a cause of action arises. This publication explores a deeper comprehensive outlook of bullying in the workplace.

The legislative definition of workplace bullying is set out under s 789FD(1) of the Fair Work Act 2009 (Cth), it states that workplace bullying occurs when:[1]

Fair Work Act 2009

s 789FD(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 workers of which the worker is a member; and

(b) That behaviour creates a risk to health and safety.

Workplace bullying is a nuanced matter that occurs at the workplace on one occasion or at times repeated. This is essentially unreasonable behaviour by one employee/employer toward another employee. The legal definition should be taken as a legal framework for workplace bullying but it should be noted that a cause of actions for workplace bullying can often be subtle and hidden. Each workplace contains its own culture and social hierarchy, and each matter should be taken on a case-by-case basis. Therefore, despite the level of severity of cases, different people approach uncomfortable situations differently and workplace bullying can adversely affect the psychological and physical health of a person.[2] What may be regarded by others as a minor incident may dramatically impact the psychology of another. The workplace is generally an unpredictable environment and employers and employees alike should take the initiative to prevent workplace bullying.

This article will provide a general understanding of cases of workplace bullying and strategies that may be adopted for preventing it.

Legal Framework

There are many forms of workplace bullying, these include but are not limited to discrimination, harassment, or bullying and it is the duty of the employer of preventing these from occurring.[3] It is important to note that under Federal discrimination laws, recipients of workplace bullying are protected from discrimination broadly on the basis of their:

Race;[4] (Offending, insulting, or humiliating a person or group based on their racial origin)
Sex;[5] (Broadly defined, sexual discrimination may form from unwelcomed sexual advances)
Age;[6] (discrimination occurring in the workplace by age)
Disability;[7] (discrimination on the basis of the disability of another) or
Sexual orientation (discrimination against sexual orientation, gender identity, and intersex status).

When suspecting possible cases of workplace discrimination, it is important to understand that some practices may not be recognised as workplace bullying under the relevant Australian legislation. These actions may seem unfair, however when employers make legitimate comments and advice based on work performance or work-related behaviour caution must be taken before faulting workplace bullying, harassment, or discrimination.[8] These can often be challenging to determine, as an employer’s discretion must take place to prevent a cause of action. Further, if you believe that you are subject to workplace bullying, ensuring that exhausting all available options is important. For example:[9]

Make note of whether the workplace has set place a bullying policy;
Make note of a diary of every instance bullying occurs;
Seeking support from someone trustworthy or contact support services;
Seeking advice.

Employer’s Duty of Care

The employer is responsible for the culture, atmosphere and conditions of the workplace. While it is often the perpetrator who compensates for workplace bullying, this doesn’t exempt the employer from their failure to uphold their duty of care.

The employer has a Duty of Care as follows:

Work Health and Safety Act 2011 (Cth)

The act places a duty for employers to ensure that the workplace does not subject any employees to health and safety hazards as a result of work conducted by the business.[10]

SafeWork NSW

This body is tasked with enforcing the Act and has the authority to levy penalties for violations of the Act and initiate remedial actions against the employer. These proceedings are typically carried out on behalf of the employee.[11]

Fair Work Act 2009 (Cth)

The act empowers a non-government worker the capacity to lodge a complaint and apply to the Fair Work Commission with a request to stop to bullying.[12]

Australian Human Rights Commission (AHRC)

The body is charged with the duty to investigate and resolve instances of bullying on any grounds.[13]

Workers Compensation Act 1987 (NSW)

The act aprovides a victim of workplace bullying with the opportunity to claim compensation for injuries resulting from the bullying or aggravation of psychological or psychiatric conditions.[14]

Case Studies

Lal v Australian Administration Services Pty Ltd (2015)[15]

The case concerned a claim of negligence as a result of psychological injury sustained from bullying that continued over a period of 5 years. Three major instances within the 5year period were pointed out to have been cases of bullying. A two-step approach was adopted by the Court, first identifying whether the incident amounted to bullying and a test for negligence. In determining whether bullying took place, the court used the definition of bullying as “repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”. Ultimately, the court was not satisfied that the three instances reported amounted to bullying. This case highlights the importance of defining and understanding what constitutes bullying in the context of negligence claims.

Ms Anne Pilbrow [2020][16]

The Fair Work Commissioner case identified and examined the distinction between reasonable management action and workplace bullying. Ms Pilbrow, a nurse, claimed that her manager’s action against her constituted bullying resulting in seeking a stop-bullying order. The Commission determined that for management action to be unreasonable it must follow that it “lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances”. The Commission found that the actions of management did not constitute bullying but directed that the actions of specific individuals in HR instead satisfied this definition. This case highlights the importance of reasonable management action and proactive HR departments in preventing workplace bullying.

Conclusion

Workplace bullying is a complex issue that can have serious implications for both employees and employers. This article delves into the complexities of workplace bullying, highlighting the legal obligations under the Fair Work Act and the employer’s duty of care. It emphasizes the importance of understanding the nuances of bullying, which can be subtle and vary greatly. The article also discusses the role of various bodies such as SafeWork NSW and the AHRC in enforcing these laws. It further examines case studies that looks into the importance of defining and understanding bullying as well as the crucial role of reasonable management action and proactive HR departments in preventing workplace bullying.

This article is not meant to act as legal advice and serves the purpose of providing academically generalised information regarding the academic information of Workplace bullying and the rights and responsibilities of employers and employees. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Foulsham & Geddes are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.

[1] Fair Work Act 2009 (Cth) s 789FD(1) (‘Fair Work Act’).

[2] Safe Work Australia, Guide to Preventing and Responding to Workplace Bullying (Guide, February 16).

[3] Australian Human Rights Commission, Workplace Discrimination, Harassment and Bullying (Web Page) (‘Workplace Discrimination’).

[4] Racial Discrimination Act 1975 (Cth).

[5] Sex Discrimination Act 1984 (Cth).

[6] Age Discrimination Act 2004 (Cth).

[7] Disability Discrimination Act 1992 (Cth).

[8] Workplace Discrimination (n 3).

[9] Australian Human Rights Commission, Workplace Bullying, Violence, Harassment and Bullying Fact Sheet (Web Page).

[10] Work Health and Safety Act 2011 (Cth).

[11] Armstrong Legal, Workplace Bullying (Web Page) (‘Workplace Bullying’).

[12] Fair Work Act (n 1).