Workplace bullying and harassment

A. Introduction

What legal options does an employee have if they feel that they are being bullied or harassed in the workplace? Traditionally, most legal claims of bullying have been addressed through a claim to WorkCover for a workplace injury. Other options have been historically limited and have generally depended on the existence of an additional factor to the bullying itself, eg termination of employment or proof of prohibited discrimination

Indeed, until 1 January 2014, the most direct form of legislation addressing workplace bullying was workplace health and safety legislation. The situation is changing although workplace bullying remains a difficult area for the law. It is likely that there will be significant legal change in this area over the coming years as society demands laws to directly address workplace bullying and harassment.

B. What is workplace harassment?

One of the biggest difficulties the law has with workplace bullying is in trying to define exactly what it is, given its inherently subjective nature. The commonly accepted definition of workplace harassment is:

A person is subjected to “workplace harassment” if the person is subjected to repeated behaviour, other than behaviour amounting to sexual harassment, by a person, including the person’s employer or a co-worker or group of co-workers of the person that:

Is unwelcome and unsolicited;
The person considers to be offensive, intimidating, humiliating or threatening;
A reasonable person would consider to be offensive, humiliating, intimidating or threatening.

So, the behaviour must generally occur on more than 1 occasion and is subject to a “reasonable person” test.

Note also that the terminology of “harassment” is used rather than “bullying”.

Workplace harassment does not include reasonable management action taken in a reasonable way by the person’s employer in connection with the person’s employment. Examples can include:

giving legitimate instructions and expecting them to be carried out;
setting realistic standards of performance; and
requesting improvement to work that is not up to standard.

Examples of workplace harassment include:

Verbal abuse and constant ridicule;
Repeated threats of dismissal;
Persistent and unjustified criticisms or complaints, often about small things;
Humiliating a person through gestures, sarcasm, criticism and insults;
Spreading gossip or false, malicious rumours about a person;
Sabotaging a person’s work, for example, by withholding or supplying incorrect information, hiding documents or equipment, not passing on messages and seeking to get a person into trouble.

Workplace harassment can also occur between people in any direction within a workplace, eg:

Laterally (a co-worker harassing another co-worker);
Upwards (a worker harassing a manager/supervisor; a nurse harassing a doctor);
Downwards (a supervisor/manager harassing a worker; a doctor harassing a nurse).

A similar definition also now exists under amendments to the Fair Work Act 2009 (Cth) which operate from 1 January 2014. There, a worker will be “bullied at work” if:

i. While the worker is at work;
ii. An individual or group of individuals;
iii. Repeatedly;
iv. Behaves unreasonably;
v. Towards the worker or a group of workers of which the worker is a member; and
vi. The behaviour creates a risk to health and safety.

Many of the cases deal with what we might think, in retrospect, are obvious cases that would never (hopefully) occur in a workplace. Where the law has greater difficulty is in dealing with what might be called low level harassment, occurring over a lengthy period that can frequently be subtle in nature including claims of overwork or underwork and denial of access to resources. Even greater difficulty is encountered with “passive” bullying which can include ignoring or not speaking to a person

C. Internal avenues to address workplace harassment

Most employers will have a specific policy about workplace bullying and harassment which should set out a process for making an internal complaint or may have a general complaints policy that employees can use if they wish to raise the matter formally with the employer. These policies normally require that a concern be raised firstly with the other employee (if practical) or a supervisor. Alternatively, if the matter is serious, a policy may allow a complaint to be made directly to a human resources or other senior manager. Policies often provide for a conference or mediation to take place if possible to try and informally resolve the complaint. If the matter is serious, a policy will usually enable an employer to investigate the complaint and take action as necessary, such as disciplining the other party. You should refer to your own employer’s policies for these details.

It is always a good idea to see if a matter can be resolved informally and internally without resorting to external avenues but this is not always possible.

From an employer’s perspective, it is important to be clear and upfront with employees that workplace harassment will not be tolerated. This should start with a clear policy which is communicated to employees and reinforced periodically and perhaps some training in the area. An employer should also encourage reporting of bullying and ensure that managers are aware of the signs of workplace harassment and bullying so that steps can be taken at an early stage.

D. What legal action can be taken?

The most common forms of legal action to address workplace harassment and bullying are as follows.

1. Complaints to public authorities

a. Workplace Health and Safety Queensland

Workplace Health and Safety Queensland is the state government agency with the power to enforce breaches of the workplace health and safety legislation. There is an equivalent body in each state. Enforcement can take a number of forms including:

The issuing of improvement, prohibition or non-disturbance notices;
Applying to a court for an injunction;
The issuing of infringement notices or on the spot fines;
Taking remedial action itself;
Accepting an enforceable undertaking;
Prosecuting for breach of the legislation.

Penalties of up to $3 million can be imposed for health and safety offences and a court can also make other types of orders including:

Adverse publicity orders;
Restoration orders;
Work health and safety project orders;
Injunctions; and
Training orders.

Legal proceedings by Workplace Health and Safety Queensland are quasi criminal in nature in that proceedings are taken by a public authority and, whilst no criminal conviction results, convictions for breach of the workplace health and safety legislation can be recorded and penalties imposed.

The advantage of a complaint to Workplace Health and Safety Queensland is that proceedings are taken by a government agency and the person making the complaint is not responsible for the proceedings or their costs. On the other hand, these proceedings do not generally result in awards of compensation for the person aggrieved and the type of legal action taken, if any, is a matter for the discretion of Workplace Health and Safety Queensland.

b. Complaints to the police

Workplace bullying may amount to “unlawful stalking” which is a breach of the criminal law in most states and territories of Australia. In Queensland, the offence is contained in the Criminal Code with penalties of up to 5 years or 7 years in certain aggravating circumstances such as the threat of violence:

359B What is unlawful stalking

Unlawful stalking is conduct-

intentionally directed at a person (the stalked person); and
engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
consisting of 1 or more acts of the following, or a similar, type-

following, loitering near, watching or approaching a person;
contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
loitering near, watching, approaching or entering a place where a person lives, works or visits;
leaving offensive material where it will be found by, given to or brought to the attention of, a person;
giving offensive material to a person, directly or indirectly;
an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and

that-

would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.

Whilst there have been no publicised criminal actions in Queensland to date, the provisions are broad enough to be used in an appropriate case. Whether charges should be laid is ultimately a matter for the police and director of public prosecutions. It should be noted that employers are generally not responsible for the criminal conduct of their employees because such conduct does not flow from the course of employment. However, it is possible for individuals to be classed as accessories in an appropriate case under the criminal law.

c. Fair Work Ombudsman

The Fair Work Ombudsman (FWO) is the federal government’s agency responsible for enforcing the federal workplace relations legislation (the Fair Work Act). Although not strictly within its field, the FWO may take proceedings for breach of the legislation in an appropriate case where workplace bullying is involved. Unlike the situation in workplace health and safety prosecutions, there have been cases where penalties for breaches of the Fair Work Act have been ordered to be paid to the victim involved.

2. Application to the Fair Work Commission for orders to stop bullying

From 1 January 2014, the Fair Work Commission has the power to make orders to “stop” bullying under recent amendments to the Fair Work Act 2009 (Cth . The purpose of the new avenue is to promote the right to safe and healthy working conditions by providing a mechanism to help an individual worker resolve a bullying matter quickly and inexpensively. This does not prevent a worker from also pursuing any of the legal avenues previously considered (although the existence of such proceedings would be taken into account by the Commission in considering whether to make an order).

The laws do not apply to sole traders, partnerships or trusts with an individual trustee. The laws only apply to “constitutional corporations”, ie the federal government, Commonwealth authorities and “trading, financial or overseas” corporations. Not for profit corporations will be subject to some uncertainty about the coverage of the laws.

Only a “worker” can make an application to the Fair Work Commission but that term is defined broadly. A “worker” is an individual who performs work in any capacity, ie an employee, individual contractor or subcontractor, outworker, apprentice, trainee, work experience student or volunteer. The term includes an employee of a corporate contractor or subcontractor and labour hire workers.

A worker will be “bullied at work” if:

While the worker is at work;
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
The behaviour creates a risk to health and safety.

Examples of things that can constitute bullying include:

Verbal abuse and ridicule;
Threats of dismissal;
Unjustified criticisms or complaints;
Humiliating a person through gestures, sarcasm, criticism and insults;
Spreading gossip or false, malicious rumours about a person;
Sabotaging a person’s work, hiding documents or equipment, not passing on messages.

In all cases, the behaviour is subject to the requirements that it be repeated and “unreasonable” so an objective test is applied.

Reasonable management action carried out in a reasonable manner is not bullying. Reasonable management action may include any of the following actions which are carried out for legitimate reasons and in a “reasonable” way:

Performance management processes;
Action taken to transfer or retrench a worker;
Other steps in the course of workplace change or restructuring;
A decision not to provide a promotion to a worker;
Disciplinary actions;
Allocating work in compliance with systems and policies;
Injury and illness processes.

This avenue is still a private remedy in that a worker must make an application to the Fair Work Commission for an order to stop bullying. The Fair Work Commission is required to start dealing with the application within 14 days. Once an application is filed, the Commission’s anti-bullying team will seek to contact all relevant parties to obtain sufficient information to enable the Commission panel head to determine how to deal with the application. This could involve referring the matter to a staff mediator to conduct a mediation or investigate the matter more fully, dealing with jurisdictional issues or assigning the matter to a Commissioner, for instance to convene a conference of the parties or conducting a hearing. Conciliation conferences will not generally be mandatory.

Before making orders, the Commission must be satisfied that bullying (as defined) has occurred and that there is a risk that the worker will continue to be bullied. The Commission must take into account:

The outcome of any investigation;
Any procedure available to the worker to resolve grievances; and
Any outcome from a grievance procedure.

So, the making of an internal complaint and pursuing any internal avenues will be a factor considered by the Commission in deciding whether to make an order. The Commission can make any order it considers appropriate to prevent the worker from being bullied, apart from ordering a money payment. This could involve making an order or a recommendation or expressing an opinion. Examples of orders that could be made include:

Requiring an individual or group to stop the bullying;
Regular monitoring of workplace behaviours by an employer;
Compliance with an employer’s workplace bullying policy;
Provision of information and support and training to workers;
Review of the employer’s workplace bullying policy.

Breach of an order leaves a person open to potential penalties under the Fair Work Act. It is unlikely that orders will be made where a worker is no longer employed or engaged at the relevant workplace.

3. Unfair dismissal claim

If bullying involves the termination of employment, then it is possible to bring an unfair dismissal claim to the Fair Work Commission (or the state industrial relations commission for state and local government employees as applicable). However, the focus in these proceedings is on whether the termination was harsh, unjust or unreasonable in all the circumstances and workplace bullying may be only one of the issues involved.

Particular difficulties arise where an employee claims they have been forced to resign from their employment because of the actions of the employer. This situation is known as “constructive dismissal”. A resignation by an employee can still constitute an unfair dismissal by the employer if it can be shown that the termination was effectively at the employer’s instigation. However, a resignation adds a level of complication to these legal proceedings and as a general rule, from an employee’s perspective, it is better not to resign from employment if possible and legal advice should be obtained prior to making a decision about resignation.

This type of claim is made to the Fair Work Commission and there is a 21 day time limit on commencing the claim after termination occurs. The Fair Work Commission can order reinstatement and/or compensation of up to 6 months wages.

Please refer to the separate factsheet on termination of employment for more information on unfair dismissal claims.

4. Unlawful dismissal/adverse action/breach of workplace rights

It is a breach of federal and state industrial legislation for an employee to be terminated for reasons of prohibited discriminatory grounds (such as age, race, sex, family responsibilities or temporary absence from work). Under federal legislation (which applies to all private sector employees), it is also a breach, in very simple terms, for an employee to take any detrimental step against an employee because they:

have what is called a “workplace right” or have exercised, or the employer thought they were going to exercise, a workplace right. A workplace right is essentially a right or benefit given to employee under workplace legislation, such as discrimination legislation or workplace health and safety legislation (eg the right to take personal leave, the right to be a WHS delegate or union officer); or
had the ability to make a complaint to the employer about their employment.

This avenue opens up a range of potential grounds for an employee in a situation of workplace bullying to rely on but it is important to remember the legal context of the claim. It is necessary to frame the factual incidents that have occurred within the available legal parameters. Ie in an adverse action claim, it is not the fact of the workplace bullying that is of primary relevance but the fact that the employee had a workplace right or did or did not exercise that right or made a query about their employment. This type of claim often involves an action taken by an employer in retaliation for something the employee has done.

This type of claim must be commenced in the Fair Work Commission within 21 days of termination of employment, if that is the adverse action alleged. If termination of employment is not relied on as the adverse action, then it appears that a 6 year time limit exists for commencing the claim (although it would normally be desirable for any claim to be commenced as soon as possible). An initial conference in the Fair Work Commission is compulsory in a termination based adverse action claim but not otherwise. After a conference is held by the Fair Work Commission (if applicable) and if there is no agreed resolution, then proceedings must be commenced in the Federal Court or Federal Circuit Court within a strict time limit (currently 14 days). Where both parties agree however, the matter may proceed in the Fair Work Commission. There is no limit on the type of remedy that can be given by the court in this type of claim. Monetary penalties, compensation and injunctions are potential remedies. As with the unfair dismissal jurisdiction, the general rule is that each party bears their own costs which can make this an attractive avenue for complainants despite the technical difficulties that can be encountered

Please refer to the separate factsheet on termination of employment for more information on this type of claim.

5. Discrimination claim

Workplace harassment may also be able to be addressed through a discrimination complaint if it can be shown the conduct either constituted sexual harassment or direct or indirect discrimination on the grounds prohibited under state or federal discrimination legislation. Ie, that the bullying occurred because of a person’s age, race, sex, family responsibilities etc.

Generally, discrimination claims must be commenced within 1 year of the discriminatory conduct occurring. There are rules about the interaction between unfair dismissal, adverse action and discrimination claims which exist and it is not generally possible to have more than one of these types of claims on foot at the one time.

Please refer to the separate factsheet on discrimination for more information on this type of claim.

6. Workers compensation claim

If an employee has suffered an injury because of workplace bullying, such as a psychological injury, they can also apply to their relevant workcover authority (eg WorkCover Queensland) for compensation for the injury that has been suffered as long as the statutory requirements are met. Claims can be made for statutory benefits under the WorkCover no fault scheme and claims can also be made separately for generally greater compensation if it can be shown that the injury was caused or contributed to by the negligence of the employer.

Workers compensation is a specialist field of its own and we can provide you with a referral to a specialist person injury law firm or you can contact your local law society for an appropriate referral. STRICT TIME LIMITS APPLY TO WORKERS COMPENSATION CLAIMS.

7. Civil claim for breach of contract

Whether this avenue exists depends on the wording of the contract of employment and the policies the employer has in existence. If an employer has a policy setting out commitments about how it will address workplace harassment and bullying and if that policy can be said to be more than just a guideline but a binding obligation under the contract of employment, then legal proceedings may be able to be taken in the civil courts seeking a remedy for breach of contract. There is generally a 6 year time limit on taking this type of proceeding. This type of proceeding is often unattractive because they generally take longer than the other types of private action outlined above and the general civil costs rules apply – ie, the loser pays the other party’s costs.

This factsheet contains general information only and does not contain an exhaustive list of legal options. Please contact us for more detailed advice about these matters.