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Workplace bullying has been a chronic problem in many industries in particular; healthcare, education, childcare and not-for-profits. It is unlawful bullying to harass and intimidate a fellow employee in the workplace repeatedly and without justification to achieve an ulterior motive and creates a risk to health and safety. That motive may be to attempt to humiliate or force the bullied employee to resign without being paid proper entitlements and where there is no valid reason for that employee to do so.

It is not bullying to demand that employees reach standards of performance which are reasonable and for which the employee has the skills and training to meet.

Wrongfully, the bullied employee might be required to perform an excessive work level, be isolated or threatened by a fellow employee. It is not just managers who might bully an employee; it could be a competitor for a job promotion or the like. Sometimes it can be done by a manager needing a scapegoat upon whom to shed blame for the manager’s incompetence or error.  Other times it is to allow a new manager to bring in a friend or ally. The Fair Work Act (Cth) section 789FD defines workplace bullying as:

1. A worker is bullied at work  if (please see below):

• while the worker is at work in a constitutionally covered business:
• an individual; or
• a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and that behaviour creates a risk to health and safety

2. To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

What is “reasonable” is commonly defined in law as “reasonable in all circumstances” – an open ended definition if ever there was one.

What must be of real concern to any bullied employee is that the workplace bullying is actually an orchestrated attempt to deny that bullied employee an employment right or entitlement. For example if a company’s business is in decline – sales might be down – the management might impose unrealistic sales targets only to later bully the employees not meeting those targets which are demonstrably unachievable. The bullied employee might feel pushed to resign or be sacked. All the while, the bullied employee is possibly entitled to a genuine redundancy.

Another example is the older employee, e.g. 55 plus, who has 20 years of service, lots of accumulated sick leave and a high income. That employee might be bullied and made to feel useless and worthless. If the bullied employee becomes too stressed he/she might resign, foregoing all the accumulated sick leave, high salary and other benefits which come from working in a job over a long period.

There are many aspects of workplace bullying which entitle a bullied employee far greater rights to legal action than merely a bullying complaint under section 789FC and 789FF of the Fair Work Act (Cth). Any bullied employee needs to have a good hard look at what’s really going on before jumping to the conclusion that they merely need to make a bullying complaint at the Fair Work Commission in the hope that the Commission will be able to help them. It may well be low cost to pay $67.20 to lodge a complaint but if the company has a high powered “gung ho” HR Department the battle may be long and difficult, stressful and exhausting. Being unrepresented by lawyers when facing a highly qualified lawyer who is a company HR Manager can make the contest rather one sided.

So, who should make an application under the Fair Work Act (Cth) bullying provisions?

1. There can be no gross generalizations; however, an application should be made at last resort by bullied employees who have no other remedies to pursue. Other alternative remedies include:
   • a formal grievance procedure under an Enterprise Agreement if you have one;
   • or  a formal grievance procedure in accordance with internal company policies and procedures (you should download the current policies and procedures, usually on the company’s intranet);
   • or  a formal grievance procedure in accordance with the terms of your contract;
   • or  a claim under the Equal Opportunity Act (Vic) to the Human Rights and Equal Opportunity Commission;
   • or  a stress claim under the Accident Compensation Act 1985 (Vic) – although these claims can be hotly contested and you should see an article (26 December , Sydney Morning Herald).
2. If you do decide to make a claim, you should be aware that you will do it at your own expense. The main remedy – outcome will be to stop the bullying and keep you in your job. That is a very good aim, but stop and think before you claim, can the bully really be stopped by a fair and impartial independent tribunal which is not permitted to be your advocate but can decide an outcome after a lengthy process? Do you really want to stay in your job in the long term? Statistics published by Fair Work Commission show that very few unfair dismissal applicants continue in their employment, with 1% of employees reinstated, even though reinstatement is the main aim of the Act (source: Fair Work Commission website). If you are on your own at the Fair Work Commission it may just be that an apology is given as a remedy. What value is there in an apology? Sometimes bullying can only be resolved by a termination package being agreed.
3. A claim should only be made where you are confident in your technical proficiency in your role and have clear evidence that the criticism-bullying is wholly unwarranted and is repetitive. A common defence to any claim of workplace bullying will be to attack your ability to perform tasks efficiently. Be prepared to substantiate any attacks on your credibility in the workplace. Too often bullied employees find that the tables are turned upon them and that they are held to be the guilty party. If that happens to you, you will feel doubly distressed, having had two losses in quick succession. Furthermore, if you later try and make an unfair dismissal claim it will be held against you that you had absolutely no basis to do so because the Fair Work Commission has had a hearing and you were found to have lost the bullying complaint case. There will be no prize for second! If you think that other employees who have witnessed the bullying will be prepared to support you, you would be wise to get a written statement from them before you commence proceedings. Too often other employees feel reluctant to speak up in favour of the bullied employee, less they get sent down the same path. That is not to say that you should not pursue the claim, but rather you should ideally do so with written evidence. You may even need a psychologists report as a backup.

Conclusion

It can be a mistake to lodge a workplace bullying complaint to the Fair Work Commission if other more suitable or appropriate remedies are available.

If you feel like you are being bullied at work and wish to lodge a bullying complaint, it should be checked by a lawyer. The recipient usually will employ a lawyer to ‘take it apart’ .

Please don’t hesitate to speak to an experienced employment lawyer at McDonald Murholme.