This is the eighth part of a series of Whitehall Workplace Law employment law articles discussing some of the legal and practical matters small businesses ought to consider in relation to the employment life cycle of an employee, from the recruitment stage to the employee ceasing to be employed. This piece looks at how to identify and prevent bullying issues in your workplace.
What is bullying?
The Fair Work Act 2009 (Cth) (FW Act) provides that a worker is bullied at work if “an individual or group of individuals repeatedly behaves unreasonably towards the worker, or group of workers of which that worker is a member and that behaviour creates a risk to health and safety”. The FW Act definition goes on to state that conduct will not constitute bullying if such conduct constitutes “reasonable management action carried out in a reasonable manner”.
Whilst, strictly speaking, this FW Act definition is specifically relevant to potential applications to the Fair Work Commission (FWC) for orders to stop bullying, it provides a commonly understood and applied meaning to the term “bullying” and the same meaning may generally adopted for other circumstances.
It is clear that to meet the above definition of bullying, the conduct must be “unreasonable” and “repeated” and must also “create a risk to health and safety”. The risk to health and safety can be a visible physical risk or a non-visible mental risk. The latter category is naturally much more difficult to detect.
It is important to note that bullying issues can arise in the form of many other legal claims beyond employees making applications to the FWC for orders to stop bullying. However, for the purposes of this piece, we look only at matters in the FWC – please contact us if your business requires further information about bullying issues.
Applications to the FWC for orders to stop bullying
The FWC decision of Perez  FWC 4097 provides useful guidance relating to the grounds on which anti-bullying orders will typically be granted by the FWC. In this case the Commissioner provided a useful summary of some important issues relevant to the determination of bullying claims in the FWC. Referring to an earlier FW decision of GC  FWC 6988, the Commissioner noted:
- There is no specific number of incidents required for the behaviour to be repeated.
- “Unreasonable behavior” should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.
- The behaviour must occur whilst the applicant is at work.
- The unreasonable behaviour must also create a risk to health and safety. Therefore, there must be a causal link between the behaviour and the risk to health and safety.
- Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.
In most cases, the first step for an employer upon receiving, or becoming aware of, a bullying complaint will be to consider the complaint and determine whether it is sufficiently precise to enable it to potentially constitute bullying and then (and not before) decide whether an investigation should be conducted.
Where bullying is found to have occurred, the perpetrators should be dealt with swiftly. Businesses should be aware of the employment rights of the perpetrators, the procedural requirements and risk of claims being brought by the perpetrators before taking action.
Employers should also take proactive steps by actively searching for and stamping out bullying when it occurs. Relying only on occasional anti-bullying training and a whizzbang policy is unlikely to cut the mustard.
Jeremy Cousins, Principal, Whitehall Workplace Law