Workplace Relations
Workplace Bullying: Employer Obligations and Prevention
Workplace bullying is a serious issue that affects employee health, productivity, and your legal exposure. Under Australian law, employers have specific obligations to prevent and respond to bullying. This guide explains what constitutes bullying, what you must do, and how to create a bully-free workplace.
What the Law Says
Workplace bullying is addressed under multiple legislative frameworks:
- Fair Work Act 2009, Part 6-4B — Defines workplace bullying as repeated unreasonable behaviour directed towards a worker that creates a risk to health and safety. Workers can apply to the FWC for a stop bullying order.
- Work Health and Safety Act 2011 — Bullying is a psychosocial hazard. Employers must identify, assess, and control bullying risks under their primary duty of care.
- Anti-discrimination legislation — Where bullying is based on a protected attribute, it may also constitute unlawful harassment or discrimination.
Reasonable management action carried out in a reasonable manner is not workplace bullying.
What Employers Must Do
Have a clear anti-bullying policy
Define bullying, provide examples, outline reporting procedures, and state consequences for substantiated complaints.
Train all staff on bullying prevention
Conduct regular training so employees recognise bullying, know how to report it, and understand the consequences.
Investigate complaints promptly
Take every complaint seriously. Conduct a fair investigation following natural justice principles.
Take action on substantiated complaints
Implement appropriate consequences and remedial actions. Follow up to ensure the bullying has stopped.
Monitor and review
Regularly review bullying complaints data, staff survey results, and the effectiveness of your prevention measures.
Support affected workers
Provide access to EAP services, consider workplace adjustments, and check in regularly with affected employees.
Common Mistakes and How to Avoid Them
Mistake: Ignoring or downplaying complaints
Fix: Every complaint must be taken seriously and investigated. Ignoring complaints exposes you to WHS prosecutions, FWC stop bullying orders, and workers compensation claims.
Mistake: Confusing performance management with bullying
Fix: Reasonable management action in a reasonable manner is not bullying. However, performance management conducted in a harsh, humiliating, or unreasonable manner can be.
Mistake: Not protecting the complainant from victimisation
Fix: Employees who report bullying must be protected from retaliation. Victimisation is a separate offence under general protections provisions.
Mistake: Failing to document the investigation
Fix: Keep detailed records of every step of the investigation including witness statements, findings, and actions taken.
Penalties and Consequences
Consequences for employers who fail to address workplace bullying:
- FWC stop bullying orders — the FWC can order employers to take specific steps to prevent further bullying.
- WHS penalties — up to $1.5 million (body corporate) for failure to manage psychosocial risks.
- Workers compensation claims — psychological injury claims from bullying are among the most costly.
- General protections claims — up to $469,500 per contravention if an employee is treated adversely for reporting bullying.
When to Get Professional Help
Consider engaging an HR consultant when you receive a bullying complaint that needs investigation, want to develop or review your anti-bullying policies, need to conduct anti-bullying training, or have received a stop bullying application at the FWC.
Jordan Firme Business Consultants provides independent workplace investigations and comprehensive anti-bullying frameworks.
Frequently Asked Questions
Under the Fair Work Act, workplace bullying occurs when a person or group of persons repeatedly behaves unreasonably towards a worker and the behaviour creates a risk to health and safety. A single incident, no matter how severe, does not meet the legal definition of bullying (though it may constitute harassment).
Reasonable management action carried out in a reasonable manner is not bullying. This includes performance feedback, disciplinary action, allocation of work, and decisions about promotions. However, if these actions are carried out in an unreasonable, humiliating, or intimidating manner, they may constitute bullying.
A worker who reasonably believes they have been bullied at work can apply to the Fair Work Commission for a stop bullying order. The FWC can order the employer and/or individual to stop specific behaviours, comply with workplace policies, provide information and training, and review workplace policies.
There is no set timeframe, but investigations should be conducted as quickly as practicable. Simple matters may be resolved in 1-2 weeks, while complex investigations with multiple witnesses may take 4-8 weeks. Keep all parties informed of progress.
Yes, if the bullying is substantiated through a fair investigation and constitutes serious misconduct or a significant breach of your code of conduct. Ensure you follow proper disciplinary procedures and give the person an opportunity to respond before making a decision.
Need Help With a Bullying Issue?
Our HR consultants can investigate complaints, develop anti-bullying policies, and help you create a respectful workplace.
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