Workplace bullying is still one of the hot topics in industrials laws, often being the type of claim levelled during performance reviews or by workers who are disgruntled in their jobs. However, valid complaints of workplace bullying need to be taken on board and dealt with seriously to avoid not only breaches of industrial laws but work health and safety laws.

Lessons for employers

Employers should:

  • Be careful to ensure that reasonable management action is carried out in a reasonable manner.
  • Treat bullying complaints seriously, but not automatically assume it is a lay down misere.
  • Seek advice early to determine whether a complaint should be investigated formally or dealt with in a more informal manner.
  • Train its employees on the meaning of workplace bullying under the Fair Work Act 2009 (Cth), including with respect to what is meant by reasonable management action.

Workplace bullying in a nutshell

For a worker to be considered bullied at work, the Fair Work Act 2009 (Cth) requires that the alleged bullying behaviour satisfy four limbs, namely the behaviour:

  1. Must have occurred whilst the person was at work.
  2. Is repeated.
  3. Is unreasonable.
  4. Creates a risk to the person's health and safety.

Reasonable management action carried out in a reasonable manner is not considered workplace bullying, and includes the ability for employers to take management action such as directing the performance of work, performance management processes and disciplinary action. The key is the reasonableness of the conduct.

Self-belief and self-conviction not enough

In a recent case before the Fair Work Commission (FWC ), Gore [2016] FWC 2559, a worker's workplace bullying claim was dismissed where it did not meet the statutory definition, being determined as "over-estimated and insubstantial, in particular, there was no repetition of unreasonable behaviour".

The case involved a casual receptionist making bullying claims against three co-workers. Examples of some of the claims made included:

  • Walking into the reception room to check the worker was at her desk.
  • Complimenting another employee.
  • Reprimanded for coming in late.
  • Stopping sending her text messages.
  • Her manager ignoring her suggestions for improvements to the business.
  • Being told by her manager how to improve performance in relation to a task.
  • Walking away from her (noting that the worker subsequently walked away from her manager in the same manner).

The above behaviour was held by Commissioner Cloghan as not being unreasonable in the circumstances. Importantly, the FWC held that:

Any application of alleged bullying is both inevitably, and importantly, highly contextual. However, the legislation does not provide for an applicant's self-belief or self-conviction, to trump all other factors...sometimes we are just overly sensitive to what is happening around us when we allegedly see a pattern.

When examining whether reasonable workplace behaviour and reasonable management action had occurred, the FWC held it cannot simply cede to a person's feelings of being anxious or uncomfortable in order to make a finding.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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