FAQs - your questions answered
From 1 January 2014, if you are bullied at work and there is a risk that the bullying will continue, you may be able to obtain an order from the Fair Work Commission to stop the bullying.
The anti-bullying amendments to the Fair Work Act 2009 do not apply to members of the Defence Force or employees of certain types of employers. If your employer is a State government department, sole trader, trust, unincorporated partnership or unincorporated association, the new anti-bullying laws do not apply to you.
Employees of Commonwealth government departments are covered by the new anti-bullying laws.
A worker is bullied at work if 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. It is irrelevant whether the individual or individuals who are bullying intend to bully the victim.
- constant unjustified criticism or complaints
- constant threats to sack or demote
- excluding someone from workplace activities
- inconsistent and arbitrary enforcement of rules
- setting unreasonable timelines
- deliberately changing work arrangements in order to inconvenience someone
- setting tasks that are unreasonable
- excessive scrutiny of work performance
- withholding information or tools required to perform work
- taking credit for another employee's work and failing to acknowledge that employee
- verbal abuse, and
It is important to note that bullying involves repeated unreasonable behaviour. A single incident is insufficient.
There are a range of behaviours that could amount to bullying. However, reasonable management action carried out in a reasonable manner does not constitute bullying. A performance assessment that you disagree with will not constitute bullying provided that it is conducted in a reasonable manner.
Behaviours involving unwanted physical contact or damage to property may also constitute criminal offences. If you experience any such behaviour, you should consider reporting the matter to the police.
In addition to seeking legal advice, you can also do a number of simple things which may assist. They include:
- Keep a diary. Take notes of all the workplace bullying and harassment that happens to you, when it happens and who the perpetrator is.
- Be informed. Make sure you have a copy of your contract of employment, enterprise agreement and workplace policies and procedures that deal with occupational health and safety and harassment.
- If you are a union member, contact your union. Many unions are experienced in dealing with workplace bullying and harassment. If the workplace bullying and harassment is affecting a number of employees there are advantages to addressing it collectively.
- Speak to your OH&S representative. Get advice about procedures in your workplace.
- Address the situation early. Employees who are subject to workplace bullying and harassment often put the issue to one side and wait before it gets really bad before addressing it. By this time the employee may have already suffered a work related stress injury and if this is the case, they may not be able to continue working.
- Make a complaint. Employees who make a complaint or inquiry in relation to their employment are protected from adverse action under the Fair Work Act 2009. It is better if the complaint is in writing because this will be easier to use as evidence should the need arise. When writing a complaint be concise and stick to the key points. You should also check any policies that your employer has relating to complaints, grievance, bullying or equal opportunity. These policies may detail the form and process for making a complaint.
- Take care of your health. Your mental and physical health is very important. If workplace discrimination, bullying or harassment is affecting you, make sure you see your doctor about it.
- Seek advice. Working out which legal or practical decisions to make can be difficult with workplace discrimination cases. We can provide support and advice on a range of legal and personal matters.
Your rights in relation to workplace bullying can vary according to a number of factors including the nature of the workplace bullying and the reason or reasons for the workplace bullying.
The Federal Government has introduced new laws specifically designed to combat workplace bullying. The laws commenced operation on 1 January 2014. Click here for more information on your rights with respect to these new laws.
As well as the new anti-bullying laws, workplace bullying may also be covered by discrimination law, general protections under the Fair Work Act 2009, unfair dismissal law, employment contract law and enterprise agreements in the workplace, and occupational health and safety law.
If you are subjected to workplace bullying because of race, sex, age disability or impairment, pregnancy, family or carer's responsibilities, union or industrial activity, religion, sexual orientation, or employment activity, your claim may also constitute unlawful discrimination. You may be able to make a discrimination claim under state or federal discrimination law. Click here for more information about employment discrimination.
If you are subjected to workplace bullying because you have exercised a 'workplace right' or for a discriminatory reason, you might have a general protections claim under the Fair Work Act 2009. The Act protects your right to make a complaint or inquiry in relation to your employment. This means your employer cannot bully you for making a complaint or inquiry in relation to workplace bullying. If you have made a complaint or inquiry about workplace bullying and the behaviour has continued or increased, or your employer has taken other adverse action against you, you might have a general protections claim. Click here for more information about workplace rights and what constitutes adverse action.
Unfair dismissal law
Sometimes workplace bullying becomes so bad that an employee has no other option but to resign. This could amount to a 'constructive dismissal'. However not all resignations that relate to workplace bullying constitute constructive dismissal. If you are considering resigning and taking an unfair dismissal claim because of workplace bullying, you should first seek advice before resigning. Click here for more information about unfair dismissal and constructive dismissal.
Employment contracts and enterprise agreements
Some employment contracts and enterprise agreements contain provisions about occupational health and safety, workplace bullying and/or grievance procedures. These instruments might give you rights in addition to those contained in OH&S law. You may be able to use these provisions to your advantage when trying to deal with workplace bullying. Click here for more information about employment contracts.
Occupational Health & Safety Law
OH&S law states that an employer has an obligation to, as far as practicable, provide employees with a working environment that is safe and free from risks to the worker's health. Workplace bullying is not consistent with a safe or risk-free working environment. Click here for more information about workplace bullying.
If you have incurred medical expenses or taken time off work as a direct result of workplace behaviour that is detrimental to your health, you might be able to lodge a workers' compensation claim or an insurance claim through your superannuation fund. For more information about workers' compensation or super fund insurance claims, please call us on 1800 810 856 or send us a message via the contact section.