What does ‘bullied at work’ actually mean?

by Shane Koelmeyer15 Nov 2017
Often conduct complained about in the workplace is not actually bullying behaviour. Shane Koelmeyer, Director of Workplace Law, looks at what workplace bullying is and what it isn’t

In January 2014, amendments to the Fair Work Act 2009 (Cth) (FW Act) commenced, introducing an anti-bullying measure and conferring a new jurisdiction on the Fair Work Commission (FWC) to make orders to stop bullying at work.

This new jurisdiction has meant that employers are more focussed on carefully navigating and managing complaints from employees who make allegations of bullying in the workplace.

It has also meant more complaints of workplace bullying - often where the conduct complained about is not actually bullying behaviour.

This difficulty often arises where employees do not know or understand what the law defines as “bullying”. 

What is bullying?
The anti-bullying measure found in Part 6-4B of the FW Act allows a worker who reasonably believes that he or she has been bullied at work to apply to the FWC for an order to stop the bullying.

The FW Act provides that a worker is “bullied at work” if the following two criteria are met:
  1. An individual or group of individuals repeatedly behaves unreasonably towards the worker or a group of workers of which the worker is a member; and
  2. That behaviour creates a risk to health and safety.
Being bullied at work can be broken down into three elements – the behaviour was repeated, unreasonable and creates a risk to health and safety.

Repeated behaviour means behaviour that is persistent or it can be a range of behaviours demonstrated over time. There is no requirement for a specific number of incidents or that exactly the same behaviour need be repeated to satisfy this criterion.

Whether the behaviour is unreasonable will be objectively assessed using the “reasonable person test”. That is, whether a reasonable person, having regard to all the circumstances, considers the behaviour to be unreasonable.  This means that an employee’s perception is not sufficient to ground a claim – the allegation will be assessed using the “reasonable person” standard. Even if an employee genuinely believes that they are being bullied at work, they may still not be able to substantiate a claim.

The SafeWork Australia Guide for Preventing and Responding to Workplace Bullying (the Guide) uses the same definition of workplace bullying as the FW Act but goes a little further and lists examples of workplace bullying, including but not limited to abusive, insulting or offensive language or comments, aggressive and intimidating conduct, belittling or humiliating comments, victimisation, practical jokes or initiation and deliberately excluding a worker from workplace activities.

Similarly, Vice President Hatcher in Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Mac) expressed the view that conduct including “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination” may be features expected to be found in a course of unreasonable behaviour and conduct which constituted bullying at work.

In addition to VP Hatcher’s comments in Mac, there have been a number of decisions from the FWC identifying which determined alleged behaviour was unreasonable behaviour and constituted bullying at work.

For example, in Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston and Others [2015] FWC 6556, the employee made a number of allegations of unreasonable behaviour, largely involving the conduct of a Sales Administrator toward her.

Whilst not all of the employee’s allegations of bullying were substantiated, the FWC was satisfied that the Sales Administrator had repeatedly behaved unreasonably toward the employee on a number of occasions, including by belittling and humiliating the employee, deliberately delaying performing administration work for the employee, speaking to the employee in a rude and hostile manner, treating the employee differently (including by not acknowledging the employee in the morning) and damaging the employee’s reputation to a client.

The FWC was satisfied that the Sale Administrator’s behaviour was bullying (repeated, unreasonable behaviour toward the employee that created a risk to health and safety) and that there was a risk to the employee that the bullying would continue at work. The FWC made an order to stop the bullying requiring specific action from the employer and the Sales Administrator.

What is not bullying?
Equally as important as identifying what is bullying, is identifying what is not. Subsection 789FD(2) of the FW Act provides that reasonable management action carried out in a reasonable manner is not bullying.

The Explanatory Memorandum to the FW Act recognises that employers need to be able to take disciplinary action against employees and give them reasonable and lawful directions as to the performance of their work, including the allocation of work and the giving of fair and constructive feedback about performance.

Similarly, the Guide provides that examples of reasonable management action include setting realistic and achievable performance goals and taking disciplinary action where it is appropriate or justified in the circumstances.

In Ms S.B [2014] FWC 2104, the FWC expressed the view that reasonable management action carried out in a reasonable manner was ‘not so much an “exclusion” but a qualification’ and noted at paragraph 47 that it comprised three elements: 
  1. The behaviour (being relied upon as bullying conduct) must be management action;
  2. It must be reasonable for the management action to have been taken; and
  3. The management action must have been carried out in a manner that is reasonable.
Whether management action was reasonable involves an objective assessment and consideration of the circumstances. Similarly, whether the reasonable management action was carried out in “reasonable manner” is also to be objectively determined.

Often, low level interpersonal conflict between two employees e.g. having a difference of opinion or personality differences is mistakenly claimed to be bullying behaviour. Whilst such behaviour in isolation may not fit the criteria of “bullied at work” under the FW Act, employers should nonetheless not allow such behaviour to continue unchecked and should ensure that incidences of poor behaviour in the workplace are still addressed.

For employers, a key part of managing complaints of bullying in the workplace is educating employees, supervisors and managers about what is and what is not workplace bullying. This can be achieved by having a clear policy on the topic and then conducting regular anti-bullying training and refreshers as well as conducting training on the standards of behaviour expected from all employees in the workplace.


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COMMENTS

  • by Bernie Althofer 15/11/2017 1:44:48 PM

    The issue of workplace bullying seems to be increasingly 'grey' when it comes to actually determining what will and what will not meet the standards required to meet the criteria outlined in the Act. Whilst individuals may believe that they are or have been bullied, the lack of documentation maintained may not show any patterns where the first criteria exists or existed.

    It is difficult to document 'tone' of communication so whilst an individual believes that the manner in which they have been spoken to is abrasive, dismissive or that there has been a lack of respect, it is just as hard to explain it. Whilst some might argue that low level conflict is not workplace bullying, one should also consider the context, the frequency and severity in which it occurs, and the consequences. For example, if a worker is targeted by another who covertly sets out to disrupt another in the expectation that the target resigns, then perhaps this could be considered bullying but might be difficult to prove if there is no documentation. In some workplaces, rumours and gossip about what is happening to a worker or group of workers might add fuel to the fire, particularly if 'everyone knows but no-one takes any action'.

    Whilst organisations may be providing employees at all levels with training in relation to workplace bullying, it has to be effective and meaningful. For example, making it compulsory for all employees to complete a self paced learning package may result in little or no change particularly if employees are able to complete the assessment without actually reading or understanding the content. In addition, requiring employees to acknowledge reading a Code of Conduct may elicit the same result when employees are busy and do not comprehend what the Code of Conduct actually entails.

    In some cases, it does appear that some of those who believe that they are being subjected to workplace bullying, may also need to consider their employment contracts, the Code of Conduct, and any obligations or requirements under Work Health and Safety legislation. For example, how far does the duty of care extend to a target and to an alleged bully? Should they both be provided with training so that 1. the target can respond to bullying and other forms of conflict and 2. the alleged bully can change their behaviours by being provided with appropriate strategies.

    It is difficult to provide a one size fits all response for any workplace and each incident should be assessed on its merits. It appears that from various contributions over a period of time, that attempts to resolve some allegations of workplace bullying may be ineffective if an investigation is not conducted; or one person is believed without letting the other person provide their version; or initial issues involving conflict are not resolved but at left to 'fester' until such stage that the number of protagonists has spread across the workplace.

    Workplaces could benefit by providing training whereby all employees at all levels are able to discuss in an open forum what bullying actually means. They could discuss examples and strategies of how best to manage those issues. Unfortunately, it also seems that taking time out to conduct risk assessments and identifying hazards and contributing factors may not be a priority for some organisations, and in line with this, some organisations may be reluctant to terminate the employment of an alleged bully particularly if that person is achieving positive outcomes in their work area (even when there is some collateral damage).

  • by Bernie Althofer 16/11/2017 2:55:49 PM

    I read a promotional article provided by a business in which they identified 7 overt signs of bullying. The article stated "In overt forms of bullying, the perpetrator makes demeaning remarks, or uses threatening gestures, abusive language, or even actual violence. This includes (and they listed 7 examples) with number 7 being "Selectively cutting work hours or exclusion from overtime opportunities".

    This seems to be an example that might be difficult to prove without direct evidence e.g. either an admission or even a perception that this was actually occurring. How would this appear in a workplace? It might be that a workplace has a small number of permanent employees with several more casual and part time employees who are from time to time rostered on to meet work loads. Would a target believe they were being bullied if they were 'dropped' from first call position to somewhere lower down the list so that another person received preferential rostering? How would a target obtain an admission from an employer (or their representative) regarding employment arrangements that may have been originally agreed to but later changed as new part time employees came on board.

    It would seem that if this example is touted as workplace bullying, it would require some substantial documentation to meet the requirements of the Act. In isolation, might appear as inappropriate rostering practices but when reviewed in conjunction with other workplace issues or conflict, a target may end up believing that they are being bullied. Management may argue that the roster is prepared according to workload and staff availability. A target would no doubt argue that they were available but were not considered. Still an audit of rosters over a period of time might detect anomalies that highlight favouritism towards one person over another.

    The test would be to present a claim and let a decision be made based on evidence presented.

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