What should you do if you're experiencing bullying at work?
Date: 20/03/2024
Conflict or tension between colleagues or your managers may happen from time to time. There are no laws requiring colleagues to be friends, and there are no laws that say you can’t get frustrated at work.
But there is a big difference between normal and understandable moments of frustration in the workplace, and bullying.
Bullying is repeated and unreasonable acts towards a worker or a group of workers, whilst at work, that creates a risk to health and safety. There is an exception for ‘reasonable management action carried out in a reasonable manner’.
Case law has indicated that the following conduct may constitute bullying if it is repeated and directed to an individual:
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- Conducting an investigation in a grossly unfair manner
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- Unreasonable work expectation
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- Exclusion from work-related events
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When is something ‘reasonable management action’?
Behaviour will not constitute bullying if it is management action, and the decision to take that action was reasonable, and carried out in a reasonable manner.
Management action could include organising performance appraisals, meetings to assess underperformance, discipline for misconduct, transferring or modifying a workers’ duties, delegating new tasks or investigating misconduct. It does not include day-to-day interactions.
Seek advice from the union or your union delegate if you’re not sure.
Process of making an internal bullying complaint
Most workplaces have an internal policy for dealing with bullying complaints. Usually, the first step is attempting to resolve the matter with the person directly involved. This could include an email or verbal conversation to try and resolve the matter.
If this fails or if you don’t feel safe raising your concerns with the individual directly, then you could formalise the bullying complaint in an email to your manager and/or HR/P&C. Here’s an example.
Under the Occupational Health and Safety Act 2004 section 21, an employer must, as far as reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Whether or not the bullying allegation has merit, an employer should investigate the allegation impartially and expediently.
Tips for making an internal/external bullying complaint
- EVIDENCE: The strength of a bullying allegation depends upon detailed, accurate and contemporaneous evidence. In a recent bullying case, a Commissioner at the Fair Work Commission made the comment ‘copies of notes taken at the time of an event…are often given greater weight because they were made when events were fresher in the mind’. Here [provide link to template] is a template to use for recording accurate bullying incidents.
- MEDICAL ADVICE: Speak with your doctor or therapist about what has been happening in the workplace, and make sure that they keep a record of the issues you’ve spoken with them about. Your doctors may be called upon to provide advice down the track.
What happens if the internal bullying complaint goes nowhere?
- Speak to your union delegate or to your union
- Consider a Stop-Bullying Application in the Fair Work Commission (get advice from your union on this application)
- Consider making a complaint about the conduct to WorkSafe Victoria
- Consider making a WorkCover claim to compensate you for any out-of-pocket expenses or time off due to the impacts of bullying
Stop-bullying applications – case law
Lots of people contact the union and want to know about Stop-Bullying Orders in the Fair Work Commission.
Stop-Bullying Orders can be made by the Fair Work Commission when bullying is established on the balance of probabilities, and the employer is not doing enough to prevent it from continuing.
The Fair Work Commission can make practical solutions to stopping the bullying from continuing, but they cannot make orders for financial compensation or emotional damages.
The Fair Work Commission is only concerned about preventing future risk; many applications end up being dismissed because the worker ends up resigning or being dismissed.
We encourage workers who are interested in this avenue to read some cases to get familiar with the jurisdiction.
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SUCCESSFUL STOP BULLYING APPLICATIONS
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Roberts [2015] FWC 6556 (23 September 2015)
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Roberts was a real estate agent who alleged that she was being bullied by a married couple; the Sales Administrator and her husband, the Principal and Co-director of the company. Roberts made 18 allegations of bullying against the couple, spanning 3 years. The business was very small, and involved witness statements from colleagues and external witnesses.
Of the 18 allegations, 9 allegations were made out.
In a separate decision, the then-Deputy President Wells ordered the workplace to provide a process for re-establishing the employment relationship, the workplace to address the behaviours of the main bully, ensure a formal policy and process for handling bullying complaints going forward, and to educate all employees about bullying and the process going forward.
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Ripinskis [2022] FWC 2054 (1 September 2022)
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Ripinskis was a sale consultant who alleged that she was being bullied by a number of staff members, but mainly by her manager. Ripinskis claimed that she was experiencing differential treatment, tampering with her property and files, exclusion from meetings and events and unreasonable criticism. This behaviour started when Ripiniskis returned from work following a workers’ compensation claim.
The Fair Work Commission found that a number of Ripinskis’ allegations constituted bullying, including differential treatment and unfair work allocation. However, Ripiniskis was also cautioned about her own unreasonable language towards her manager, which the Fair Work Commission mentioned could also constitute bullying.
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UNSUCCESSFUL STOP BULLYING APPLICATIONS
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Zoran Momirovski, Anthony Douglas, Roberto Serafini, Peter Naumcevski, Matthew Egan [2023] FWC 3299 (8 December 2023)
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Five FedEx workers made roughly 50 allegations of bullying against their manager, spanning over 6 years. The allegations were largely about yelling, belittling and humiliation when the manager was directing workers to perform their duties.
The Fair Work Commission found that none of the complaints amounted to bullying, as the manager was either taking ‘reasonable management action’ or his evidence was more trustworthy, due to their detail and being contemporaneous.
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Application by E.K [2017] FWC 3907 (21 August 2017)
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EK was an aged care worker who alleged she had been bullied by her manager and supervisor over 3 years. The allegations predominantly involved her manager and/or supervisor repeatedly asking EK to follow correct procedures, even if it caused delays in her work.
None of the allegations were found to constitute bullying in the Fair Work Commission, as the manager and supervisor were taking ‘reasonable management action’.
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Application by Mac [2015] FWC 774 (13 February 2015)
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Mac was a lawyer with the Bank of Queensland who alleged that she was being bullied by five different managers. Mac’s was being accused of poor performance at work, despite her own position that her performance was adequate and that she did not deserve to be performance managed.
The Fair Work Commission found that there was an ‘evident and intelligible’ justification for the decision to issue a performance improvement plan, and therefore this was not a case of bullying.
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