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See Fair Work Act s.789FD
A worker is bullied at work if, while the worker is at work in a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.
Bullying can cover behaviours carried out by one or more people.
The concept of repeatedly behaving unreasonably refers to the existence of persistent unreasonable behaviour, and may include a range of behaviours over time. There is no specific number of incidents required for the behaviour to be ‘repeated’, provided there is more than one occurrence, nor does the same specific behaviour have to be repeated.[1]
Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable. In other words it is an objective test.[2] This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.[3]
A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety.[4] The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.[5] The risk must be real and not simply conceptual.[6]
The bullying behaviour must create the risk to health and safety. Therefore there must be a causal link between the behaviour and the risk. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.[7]
Note: in addition to decisions concerning what may constitute bullying at work under Part 6-4B of the Fair Work Act 2009 (the Fair Work Act), the following examples include cases about bullying in other legal contexts.
Many of the following cases are extreme examples of workplace bullying. Bullying can take many forms. It can involve less overt, less severe and more subtle behaviours. More subtle behaviours such as exclusion can, if frequently repeated over an extended period of time, amount to a significant psychological hazard for a worker.
Work health and safety regulators assess and investigate bullying complaints in accordance with their individual compliance and prosecution policies, which may take into account issues such as the immediate risk to health and safety, possible breaches of work health and safety legislation, evidence, likelihood of success and whether prosecution would be in the public interest. Furthermore, jurisdictions that utilise alternative dispute resolution practices may not keep or publish records of the outcomes in these matters.
For the Fair Work Commission to make an order to stop bullying, an applicant will need to show that on the balance of probabilities, a worker, whilst at work, has been bullied, that the behaviour creates a risk to health and safety, and that there is a risk that the worker will continue to be bullied at work.
[2017] FWC 3136 (Roe C, 8 June 2017).
Facts
The two applicants were bus drivers and each made an application for an order to stop bullying by their Manager. They alleged that the behaviour engaged in by their manager was unreasonable, including:
acting in a confrontational manner with the first applicant.
In total 12 bus drivers, including the applicants, gave evidence complaining about the Manager’s behaviour.
Outcome
The Commissioner found that the Manager had engaged in repeated, unreasonable behaviour and that behaviour created a risk to health and safety. The Manager had bullied the applicants. However, the Commissioner declined to issue an order to stop bullying. He considered that, as the employer had changed the reporting lines so that the applicants would not be directly managed by the Manager, they would not be at risk of bullying continuing. Further, he also considered that the finding of bullying itself would ‘be sufficient to protect Mr Lacey and Mr Kandelaars from the risk of further bullying’.
Relevance
In this matter the Commission was presented with evidence from both of the applicants, and also from other bus drivers working at the company. The evidence of the other drivers established a number of other incidents where the Manager swore at drivers or humiliated drivers or unnecessarily harassed drivers. This helped to show that the unreasonable behaviour was repeated, and that there was a risk that the drivers would continue to be bullied at work.
[2015] FWC 7312 (Gostencnik DP, 16 November 2015).
Facts
Three employees (the applicants) of DP World Melbourne Limited (DP World) employed at its West Swanson terminal each made an application for an order to stop bullying. The applications included allegations of conduct engaged in by individuals who are, or were, employees of DP World, members of The Maritime Union of Australia (the MUA) and/or officials of the MUA.
The unreasonable behaviour began after a complaint was made by one of the applicants to DP World concerning derogatory comments made about her by another employee of DP World. Between mid-2013 and July 2015, the applicants raised with DP World in excess of 212 complaints and concerns about conduct by other employees of DP World and representatives of the MUA, which they believed constituted bullying at work. The applicants alleged in the order of 37 instances of bullying in their application to the Commission. These included:
Outcome
The Commission was satisfied that each applicant was subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals, and that behaviour created a risk to their health and safety, saying that ‘the conduct engaged in ... is something about which no respondent party to these proceedings should be proud’. The Commission found that a code of silence, said to be a ‘prevailing culture or paradigm where employees at the WS Terminal will not make complaints to DP World or verify complaints made, for fear of being labelled a ‘lagger’ or being ostracised in the workplace’ still existed, and while steps had been taken by DP World to address the code more could be done.
Relevance
The ongoing unreasonable behaviour in this case was varied and frequent, with the applicants raising in excess of 212 complaints and concerns. Further impacting the effect of the behaviour was the fact that DP World had, on numerous occasions, failed to comply with the requirement under its Workplace and Bullying Policy to promptly deal with complaints. This slow response along with the negative workplace culture with the ‘code of silence’ exacerbated the effect of the workplace bullying on the applicants. Not dealing with allegations of workplace bullying appropriately may give the impression that unreasonable behaviour is an accepted part of the workplace.
[2015] FWC 5272 (Hampton C, 5 August 2015).
Facts
Two applicants made applications for orders to stop bullying. The applicants were employees of a relatively small real estate business and remained employed at the time the applications were heard. The applications alleged bullying conduct by a Property Manager engaged by the employer and then subsequently employed by a related company. Both applications concerned alleged conduct in the same workplace and the same unreasonable behaviour. The alleged behaviour by the Property Manager included:
The applicants raised some concerns with employer, these were the subject of an informal investigation and an attempted workplace mediation. With the support of the employer, the Property Manager resigned her employment with the employer but took up an equivalent position with a related company. At hearing the employer conceded that a finding that bullying conduct had taken place in the workplace could be made.
Outcome
The Commission found that the conduct revealed a workplace culture where unprofessional and unreasonable conduct and interactions had taken place which created a risk to health and safety of a number of workers involved. The Commission further found that the applicants had been bullied at work and was satisfied that there was a risk that the applicants would continue to be bullied at work.
Relevance
The culture in this workplace led to a situation where the applicants were subject to unreasonable behaviour by the Property Manager. The employer has a responsibility to ensure a safe workplace which is free from workplace bullying, this includes the conduct of staff it employs.
[2015] FWC 6602 (Hampton C, 4 November 2015).
[2016] FWC 763 (Hampton C, 12 February 2016).
Facts
The applicant was employed as a Food and Beverage Attendant at a family owned restaurant. She sought orders to stop certain alleged conduct by the group of individuals including orders for the employer to conduct management courses to be completed by the Supervisors at the restaurant and for all staff to attend training in relation to bullying conduct. The applicant's complaints centred around incidents of aggressive and intimidating conduct as well as exclusion from staff meetings. The employer contended that the alleged conduct was not bullying but rather was reasonable management action carried out in a reasonable manner.
Outcome
The Commission was satisfied, on fine balance, that there was sufficient relevant unreasonable behaviour towards the applicant and/or the group of workers to which she belonged whilst at work to constitute bullying. However, much of that behaviour occurred in a particular context that had now changed, with two of the persons involved no longer working at the restaurant.
In a separate decision the Commissioner declined to issue orders to stop bullying as positive measures had been taken by the employer and the Commissioner did not consider that the making of orders ‘would be conducive to the constructive resumption of working relationships’.
Relevance
Even where a finding of bullying and some future risk is made, the Commission must consider whether it is appropriate to make an order.
[2017] FWC 4988 (Wilson C, 6 October 2017.
Facts
The applicant was subject to 6 separately identifiable instances of management action.
Outcome
The Commissioner considered each instance in turn, determining that some aspects of the action were unreasonable, including the failure of the employer to consider grievances lodged by the applicant. It was also found that a failure by the applicant’s manager to adequately check her leave balance resulted in her annual leave being unreasonably refused.
In considering whether to issue orders, the Commissioner considered that there was a likelihood that the unreasonable behaviour would continue and there was some risk that it could create a risk to health a safety. In part, the ongoing nature of the behaviour was partly attributed to the applicant, considering that ‘the presence of this contributory behaviour and conduct inevitably tempers consideration of what may be done about the conduct’.
Relevance
An applicant’s own conduct is a matter that the Commission may consider relevant under s.789FF(2)(d) when considering the terms of an order. Orders included the provision of anti-bullying and positive communication training to all individuals involved in the application, including the applicant.
[2007] NSWCA 377 (21 December 2007), [(2007) 71 NSWLR 471].
Facts
A male labour hire employee succeeded in obtaining damages in negligence against his employer and the company for which he performed work on the basis that he was subjected to bullying behaviour from an individual at the workplace over five years including:
Outcome
The Court found that the conduct perpetrated on the worker was prolonged, abusive, intimidating and physically threatening. It was bullying in an extreme form. The perpetrator’s conduct was ‘so brutal, demeaning and unrelenting that it was reasonably foreseeable that, if continued for a significant period of time ... it would be likely to cause significant, recognisable psychiatric injury’.
Relevance
Although this is not a decision of the Commission, it has been included as an example of extreme bullying occurring in the workplace. The damages/compensation awarded in this case are not available in the Commission as the Fair Work Act does not allow the payment of compensation or damages.
[2013] VSCA 76 (12 April 2013).
Facts
The bullying target, a police officer, alleged she was bullied after being moved into a new unit including by:
The employer denied that many of the events detailed actually occurred.
Outcome
The jury found that the target did suffer injury as a result of the employer’s negligence. The target had suffered a serious mental disturbance caused by the respondent’s conduct. The decision was affirmed on appeal.
Relevance
Although this is not a decision of the Commission, it has been included as an example of bullying occurring in the workplace, including bullying by exclusion of the target from workplace activities. The damages/compensation awarded in this case are not available in the Commission as the Fair Work Act does not allow the payment of compensation or damages.
[2005] NSWIRComm 202 (14 July 2005).
Facts
The bullying target made legitimate complaints about late pay, which culminated in her being dismissed from her employment as a legal secretary after six months. She sought relief under the victimisation provisions of the Industrial Relations Act 1996 (NSW), alleging bullying that involved:
Outcome
The court found the respondent 'embarked on a deliberate, disgraceful and relentless campaign to force the applicant's resignation', accepting that the worker was subjected to 'a pattern of victimisation'. The court granted relief including reinstatement to her former employment and compensation.
Relevance
Although this is not a decision of the Commission, it has been included as an example of bullying in the workplace following complaints made by the employee. The damages/compensation awarded in this case are not available in the Commission as the Fair Work Act does not allow the payment of compensation or damages.
Print P4843 (AIRC, Tolley C, 10 September 1997).
Facts
The applicant resigned from her employment as a packer on a production line, but subsequently sought reinstatement on the basis that her resignation had been forced by bullying including:
ongoing bullying by her supervisor, ‘to the point of reducing her to tears’
isolation following her return to work after a work-related illness, including being assigned to an isolated workstation by herself, facing a blank wall with her back to her fellow employees
being singled out by a supervisor for ‘special treatment’ to ‘toughen her up’, and
selective application of the employer’s return to work rehabilitation policy, to suit the supervisor.
Outcome
The Commission found that the applicant had been subject to ‘incessant bullying, abuse and harassment’ by her team leader and that the applicant did not receive the support she was entitled to ‘as a human being by any level of management at the company’. The applicant was reinstated and awarded all lost income at the rate of pay, including shift allowances she was receiving prior to her dismissal.
Relevance
Although this is a decision of the Commission prior to the introduction of the anti-bullying provisions, it has been included as an example of how bullying may be aggravated by a lack of support at any level of the organisation.
[2005] NSWCA 367 (28 October 2005).
Facts
The plaintiff claimed her employer was negligent in allowing her to be bullied for approximately two years after being promoted to a team leader position ahead of her former manager. In the worker’s new role she was required to ‘attack the workplace culture’ and assist in an organisational restructure. The worker alleged she was subjected to victimisation, harassment, humiliation and abuse, including:
Outcome
The Court held that the worker’s employer had been negligent in failing to respond to her requests for assistance to deal with the team’s insubordination. The decision was affirmed on appeal.
Relevance
Bullying does not necessarily involve conduct of more senior employees towards more junior employees. A more senior employee may be bullied by employees that report to him or her.
[2011] VSC 538 (27 October 2011).
Facts
The applicant, who was employed at a racetrack, suffered a workplace injury and was away from work for 2 weeks on WorkCover. When he returned he alleged that he was bullied and required to perform tasks he had not performed before, or which he had to perform alone, including:
The applicant claimed that the tasks were demeaning and humiliating for him and as a consequence, he became stressed. The employer denied allocating him these tasks. The applicant also claimed that he was discriminated against and bullied when he was sent home for not wearing the prescribed uniform shirt.
Outcome
The Court did not accept the applicant’s evidence that he had been required to perform the tasks described. The Court further found that the direction to go home for not wearing the prescribed uniform shirt did not constitute bullying.
Relevance
Reasonable management action carried out in a reasonable manner does not constitute bullying. In this case the court was satisfied that the track manager was fair, but firm, with the employees who worked under him.
[2014] FWC 2104 (Hampton C, 12 May 2014).
Facts
The applicant managed a team of employees. It was alleged that two of the employees, who reported to the applicant, started behaving unreasonably towards the applicant by harassing her on a daily basis and spreading rumours about her in the workplace.
One of the employees made bullying allegations against the applicant (immediately prior to the applicant lodging her application). An investigation by a legal firm was arranged by the employer which found that the allegations against the applicant were justified in part, whereas the complaints by the applicant were not substantiated.
The applicant did not rely upon the legal firm’s investigation as evidence of bullying conduct in its own right, but as support for her proposition that there was a risk of ongoing bullying conduct; principally on the basis that no action was being proposed in relation to the employee.
The applicant sought orders from the Commission directed at stopping the alleged conduct of the remaining employee (the other alleged bully having left the organisation), compliance by the employer and others with the workplace bullying policies operating at the workplace, and the monitoring of workplace behaviour by the employer.
Outcome
The Commission was not satisfied that the alleged behaviour occurred and/or was unreasonable in the context that it occurred; some of the behaviour was bordering upon unreasonable but not such as to fall within the scope of bullying behaviour. Also the Commission was not satisfied that the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to health and safety. As a result, the Commission was not satisfied that the applicant had been bullied at work and the application was dismissed.
The Commission noted that the applicant had not acted vexatiously in bringing her application and that the application was not made without any foundation. The Commission also noted there were some cultural, communication and management issues in the workplace that needed to be addressed by senior management.
Relevance
It is necessary to examine whether an individual or group of individuals have repeatedly behaved unreasonably towards the applicant, and whether such behaviour has created a risk to health and safety.
[2015] FWC 5850 (Hampton C, 28 August 2015).
Facts
The applicant was a worker employed by Programmed Integrated Workforce Pty Ltd (PIW) and was often assigned to work at Coca Cola Amatil (CCA).
He alleged that he had experienced an incident where the person named in the application had both verbally and physically assaulted him. The applicant, however, accepted that the conduct only occurred once.
The respondent parties objected to the application on the basis that, even if the incident did occur as the applicant alleged, which was disputed, the behaviour did not amount to bullying within the definition of the Fair Work Act as the unreasonable behaviour had not occurred repeatedly.
Outcome
The Commissioner confirmed the decision in Re Ms SB where it was found that there ‘is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than on occurrence), nor does it appear that the same specific behaviour has to be repeated’.
It was reinforced, however, that ‘(t)he definition implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time… The unreasonable behaviour must however be repeated’. The application was dismissed.
Relevance
Unreasonable behaviour can include a range of behaviours over time or an unreasonable behaviour that is repeated. In this case a single incident, whilst clearly unreasonable and inappropriate, was not enough to provide the necessary jurisdiction for the Commission to determine this particular application.
[2014] FWC 3940 (Roe C, 17 June 2014).
Facts
The applicant was a training manager responsible for the employer’s training business in Victoria and had a team of seven or eight other employees including trainers. The financial performance of the training part of the business was not considered to be satisfactory. At a national conference the Managing Director announced that reporting arrangements would change.
The General Manager alleged that the applicant avoided him, failed to attend meetings, failed to keep him updated about important information about the business and about staff dissatisfaction, and discouraged the engagement of members of her team with the General Manager. On 30 October 2013 the General Manager called the applicant into his office and told the applicant that her behaviour was not acceptable and that he was not prepared to put up with it continuing.
The applicant alleged that what occurred at this meeting was bullying behaviour. The applicant further alleged that there were a number of subsequent incidents between 30 October 2013 and 28 November 2013, in which the General Manager failed to inform and encourage her involvement in relevant meetings, failed to provide adequate information about reporting responsibilities and expectations, undermined her position by going directly to members of her team, and was overly intrusive and micro-managing.
The applicant submitted that the instances of bullying generally occurred in private exchanges between the General Manager and herself and that in front of others the General Manager did not generally behave unreasonably.
Outcome
The Commission was satisfied that the health and safety of the applicant was negatively impacted and continued to be impacted by what happened at work. However, the Commission found that the only instance of unreasonable behaviour was in the General Manager failing to properly respond to the applicant’s request to have a support person at future meetings. The Commission was not satisfied there were repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner.
Relevance
For orders to be made, the Commission must find repeated instances of unreasonable behaviour that are not reasonable management action carried out in a reasonable manner.
[1] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 41.
[2] ibid., at para. 43.
[3] House of Representatives Standing Committee on Education and Employment report, Workplace bullying “We just want it to stop”, at p. 15.
[4] Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 (30 September 2010) at paras 65–67, [78 NSWLR 94]; Abigroup Contractors Pty Limited v Workcover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 (24 September 2004) at para. 58, [(2004) 135 IR 317].
[5] Macquarie Concise Dictionary definition Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 45.
[6] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 45.
[7] Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339 (5 December 2006) at para. 301; Re Ms SB[2014] FWC 2104 (Hampton C, 12 May 2014) at para. 44.