Australia: How to Identify and Prevent Workplace Bullying

As an employer, you are responsible for proactively building and maintaining a safe and respectful working environment. In the context of workplace bullying, this means taking active measures to prevent it from occurring and addressing it if it does. Otherwise, you may fail to fulfil your legal duties under the law and continue to foster an unhealthy work environment. To help you identify and prevent workplace bullying this article explains:

• the legal framework regarding workplace bullying; 
• your duties as an employer; and 
• the recommended steps you should take if workplace bullying arises.

What is the Legal Framework?

Bullying falls within the broader category of "unwelcome and unreasonable conduct in the workplace". Unwelcome and unreasonable conduct is an umbrella term covering three types of conduct, including:

1. bullying at work; 
2. sexual harassment and sex-based harassment at work; and
3. subjecting a person to a  hostile working environment on the ground of sex.

For the purposes of this article, we will focus on the first instance of unwelcome and unreasonable conduct. 

What is Workplace Bullying? 

The law considers workplace bullying a risk to your workers' health and safety. Hence, a worker can establish that they have experienced workplace bullying if:

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

Workplace bullying can occur through verbal, physical or psychological abuse and via emails, texts, or social media inside or outside the office. Workplace bullying can be either direct or indirect. For example, direct workplace bullying can include:

• threatening to harm someone;
• acts of violence;
• aggressive, insulting or offensive behaviour or language; or
• public humiliation, such as practical jokes or "hazing".

On the other hand, indirect workplace bullying can include:

• deliberately excluding or isolating an employee from workplace activities;
• spreading malicious rumours about another employee;
• sharing images without consent;
• unjustified criticism or complaints;
• setting tasks far below or above a person's skill level;
• deliberately denying access to information or other resources; or
• withholding access to information or other resources an employee requires to perform effectively at work.

What is Not Workplace Bullying?

There is a clear carve-out in the legal framework for reasonable management action. For example, typical management actions that do not constitute workplace bullying so long as they are carried out reasonably include:

• setting performance goals and deadlines;
• rostering and allocating work;
• managing employee performance;
• notifying an employee of unsatisfactory performance;
• deciding not to promote a worker if a fair and transparent process has been followed;
• informing an employee about inappropriate behaviour; and
• restructuring or organisational changes.

What Federal Protections Regulate Workplace Bullying?

At a federal level, the  Fair Work Act 2009  (FWA) and the  Workplace Health and Safety Act 2011  (WHS Act) regulate bullying. While there is no specific prohibition on bullying, these laws tackle bullying and harassment in the following ways.

1. Placing Positive Duties on Employers 

The WHS Act places a positive duty on businesses to eliminate or minimise the risk of bullying towards workers or other persons at work insofar as it is reasonably practicable. This duty applies to a broad scope of people in your business, namely any 'person carrying on a business or an undertaking' (PCBU). 

Additionally, a specific duty is attached to each participant in the workplace. 

2. Providing Workers With Legal Recourse

The FWA allows an existing worker to apply to the Fair Work Commission (FWC) for an order to stop bullying. The worker can only bring the application if they still work for your business. To be successful, the application must show that:

• an individual or group has bullied the worker while at work in a constitutionally-covered business; and
• there is a risk that the person will continue to be bullied at work.

Only workers can bring a "stop-bullying" application. A worker is any individual who performs work in any capacity, including:

• employees;
• contractors;
• subcontractors;
• outworkers;
• apprentices;
• trainees;
• students gaining work experience; and
• volunteers.

How Can I Protect My Workers and Avoid a Workplace Bullying Claim?

As an employer, there are some ways you can carry out your positive duties to minimise the risk of bullying.

1. Be Proactive

Before any incident occurs, you should communicate your business' values and expectations about respectful and reasonable behaviour. Additionally, your managers should exemplify your business standards by calling out any conduct that does not align with such standards.

2. Identify the Risks of Bullying

Take steps to identify unreasonable behaviour early on through regular consultation with workers, exit interviews and monitoring incident reports. You can also identify roles where bullying is more likely to occur (for example, in stressful work environments, or where there is a hostile team culture), or individuals who are more susceptible to bullying (such as younger workers, casual workers or interns).

3. Implement Control Measures and Training

Managers and employees should receive up-to-date training on their positive duties regarding unwelcome and unreasonable conduct. 

In addition, employers should implement or update policies and procedures, such as a Workplace Health and Safety Policy and an Anti-Bullying, Harassment and Discrimination Policy. To ensure these policies are effective, you should circulate and actively implement them. 

4. Investigate, Address, and Record

When a worker reports bullying to you or another management team member, it is essential to act promptly and investigate while treating the matter seriously and confidentially. 

In addition, it is important to be neutral, supportive, communicative and transparent throughout the investigation. Importantly, you should make and keep written records of each step of the process, the report and the outcome.  

Key Takeaways

Workplace bullying is part of a broader scheme of unwelcome and unreasonable workplace conduct. Unwelcome and unreasonable conduct can lead to severe physical, emotional or psychological harm that can adversely impact your workers and business and expose you to legal claims. Therefore, you must be aware of your duties and implement policies and procedures that can actively prevent and address adverse incidents.

Frequently Asked Questions

What is workplace bullying?

Workplace bullying is repeated unreasonable behaviour directed towards an employee or group of employees that pose a risk to their health and safety. It can be verbal, physical or psychological abuse and occur face-to-face or online, directly or indirectly.

How can I prevent workplace bullying and harassment?

Prevention can be as simple as conducting regular meetings with workers to discuss incidences of bullying or seeking feedback when employees leave. Implementing a  Workplace Health and Safety Policy and Anti-Bullying, Harassment and Discrimination Policy in your business can be useful. However, you should actively implement such policies to ensure they are effective.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.