A guide on managing bullying and harassment in the workplace

The Fair Work Act 2009 (Cth) (Act) states that a worker is bullied if an individual or group of individuals “repeatedly behaves unreasonably towards the worker or a group of workers of which the worker is a member” while the worker is at work and the “behaviour creates a risk to health and safety”.

The Act enables a “worker” (which includes an employee or contractor) who reasonably believes that he or she has been bullied at work to apply to the Fair Work Commission (FWC) for an order that the FWC believes is appropriate to prevent the worker from being bullied at work by the individual or group alleged to have engaged in bullying. The FWC cannot make an order requiring the payment of money.

Bullying can be direct or indirect:

1. with respect to direct bullying, this can be obvious and aggressive. It involves behaviour that frightens or humiliates an employee and may include:

• verbal abuse;
• offensive jokes;
• humiliation;
• unfair criticism;
• violence;
• damage to property; and
• spreading rumours.

2. Indirect bullying may take form as one of the following:

• deliberate exclusion from normal workplace activities;
• setting unachievable deadlines;
• assigning menial work;
• unreasonably blocking work opportunities and promotions; and
• withholding information.

Note that bullying does not necessarily have to be intentional and can occur via:

1. another person;
2. in writing (e.g. letters and notes); or
3. through the use of electronic devices and social media platforms (e.g. mobile phones, text, email, Facebook).

Behaviours that are not considered bullying

It is important to note that the following behaviours are not identified as bullying in the workplace:

1. reasonable managerial actions carried out in a fair way;
2. setting attainable performance goals and deadlines;
3. rostering and allocating work and work hours;
4. informing an employee about unsatisfactory work performance or inappropriate behaviour; and
5. constructive feedback.

Risks to health and safety

Workplace bullying and harassment should be treated as any other health and safety hazard in the workplace. As bullying is defined as a risk to one’s health and safety, victims of bullying often face many distressing effects and feelings as a result of the bullying. Such effects and feelings may include shame and helplessness, loss of self-esteem, poor work performance and relationships, post-traumatic stress disorder and possibly, anxiety and depression.

Under work health and safety legislation, employers have a duty of care to take all reasonably practicable steps to manage and prevent health and safety risks in the workplace. Workplace bullying and harassment is one such risk. If an employer fails to adequately manage and prevent such risks in its workplace, this may be a breach of work health and safety laws and could lead to serious repercussions for the employer.

Risk management of bullying

When dealing with bullying, there are various risk management steps that employers must follow. These include:

1. consulting with workers on occupational health and safety matters;
2. identifying the risk factors of bullying (e.g. organisational change, negative leadership styles, and lack of appropriate work systems);
3. assessing the risk factors of bullying (factors may be interrelated and therefore should not be considered in isolation);
4. eliminating or controlling bullying risk factors;
5. putting an effective workplace policy into effect to eliminate and/or or reduce the risk of bullying in the workplace;
6. developing and implementing effective training where all staff can stay informed and have easy access to the policy and procedures on bullying; and
7. regular monitoring and evaluation of risk control measures.

How should employers respond to workplace bullying complaints?

Employers should treat all bullying and harassment complaints very seriously and act promptly in investigating and handling the complaint. It is important to ensure that all parties are treated with respect and courtesy and are made aware of support programs such as employee assistance programs. Further to this, confidentiality should be provided for all parties and any formal investigation should be documented, including all meeting and interview details. Often, employers choose to engage CTI Lawyers as an independent investigator for any bullying complaints that are received. This allows an impartial investigator to review the complaint and formulate a view with respect to whether or not the conduct of bullying and harassment has occurred and to provide recommendations for the employer moving forward. Our lawyers at CTI Lawyers are experienced in conducting these investigations in a quick, effective and cautious manner so as to avoid disruption in the workplace.

This summary is a guide only and is not legal advice. For more information on legislative obligations, please call CTI Lawyers on 02 9021 9699 or email [email protected].