Up to one half of the Australian workforce will experience workplace bullying during their working lives
Bullying at work is costing Australian businesses money, and yet action on bullying remains disproportionately low. The reasons for this remain unclear. What is clear is that it is up to each and every one of us to take action to stamp out bullying at work, and identifying workplace bullying is the first step in combating it.
In this article, I will address the definition of workplace bullying as applies under federal Australian law.
What is Bullying at Work?
Let’s look at the Fair Work Act 2009 definition[i] of bullying and break it down into its components.
A Worker is bullied at work when another person (let’s call them the Actor) repeatedly behaves unreasonably towards the Worker and that unreasonable behaviour creates a risk to health and safety.
Bullying can be done by one or more people, and one or more workers can be the subject of the bullying.
There are a few things to note in this definition, which are often overlooked when evaluating bullying allegations:
- It is the effect on the worker and not the intention of the Actor that is paramount
- proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by bullying behaviour is demonstrated
- the Actor’s behaviour must be unreasonable and repeated
Repeated unreasonable behaviour
While the concept of repeated unreasonable behaviour is fairly broad, both elements must be present. A single unreasonable act or single occurrence of unreasonable behaviour will not be enough to enliven the Fair Work Commission’s jurisdiction, but it may be a warning sign that management needs to step in and make changes to ensure that a one-off incident does not turn into a pattern of behaviour.
There is no specific number of instances for the behaviour to be “repeated”, so long as it happens more than once. Nor does the Actor have to repeat the exact same behaviour over time; a series of different actions and behaviours can over time amount to bullying.
The second element required is that the action or behaviour is unreasonable. At the risk of sounding like a lawyer[ii], unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable. The test is objective and takes into account prevailing societal norms and expectations. It is conceivable therefore that what is “reasonable” will change over time. The important this to consider is whether a reasonable person in the Worker’s position and circumstances, would think that the Actor’s behaviour was reasonable at the time the behaviour occurred.
A risk to health and safety created by the behaviour
As noted above, it is not necessary to show that harm was sustained. It is not even necessary to show that there was actual danger to health and safety. The test is whether the behaviour created a risk or possibility of harm to health and safety.
The Fair Work Commission in its Anti-Bullying Bench Book[iii] gives the meaning of ‘risk’ as “exposure to the chance of injury or loss. The risk must be real and not simply conceptual. The bullying behaviour must create the risk to health and safety. Therefore there must be a causal link between the behaviour and the risk.”
The Commission goes on to state that the bullying behaviour does not have to be the only cause of the risk, it only needs to be a substantial cause of the risk viewed in a common sense and practical way.
The Actor may not know they are creating risk
Even though the above elements may feel a bit broad and require a bit of careful thought when assessing whether or not a Worker has been bullied, I have found it is the Actor’s stated intention that causes many employers and investigators to err on the bully’s side. Courts and Commissions have repeatedly dismissed claims that repeated unreasonable behaviour was intended as “a joke”, “harmless pranks or workplace high-jinks” or “initiation rites”. Nor will the law tolerate the [rather old fashioned in my view] “that’s how I was treated, so that’s how I treat others” defence.
No claims of innocent intent will stand up where the effect on the Worker is that a risk to health and safety was created by the repeated unreasonable behaviour.
So what does that all mean practically speaking for business owners?
If you think that bullying may be occurring in your workplace, or if your staff is reporting bullying behaviour, look for these three signs to determine whether it is bullying, or misconduct of another type:
- A Worker is experiencing unreasonable behaviour form another person (or persons);
- That behaviour is repeated or recurring; and
- The behaviour creates the risk or possibility of harm to health and safety
Once you have determined whether or not bullying is occurring in the workplace, you must next decide how to respond. Generally speaking it’s a good idea to seek advice from your employment lawyer or HR consultant. To find a lawyer or HR consultant check out the BBB Connect Directory.
[i] The Fair Work Act 2009 applies when a worker is at work in a constitutionally‑covered business; however, it is an excellent starting point for conversations about bullying. Employers and staff should always seek independent legal advice on the definition applicable to their particular work environment
[ii] I used to be a lawyer, but I feel much better now