Working with dignity: Bullying and your rights at work

Everyone has the right to work with dignity in a safe workplace.

At Gordon Legal, we have decades of experience in protecting human rights and fighting against bullying in the workplace and are committed to promoting fairness and dignity at work.

We know that it takes courage to speak up. We understand the emotional and professional pressure of doing something about a workplace problem. We know that, sometimes, bullying is hard to identify, and harder to prove.

The first step is knowing your rights. This article sets out some simple guiding principles to help you make an informed decision.

What is bullying?

Bullying is repeated, unreasonable behaviour by one or more people towards you (or a group of workers to which you belong) while you are at work (or doing work-related activities), which creates a risk to health and safety.

  • Bullying can take many forms, including:
  • aggression
  • intimidation
  • humiliation
  • spreading malicious rumours
  • excluding behaviour
  • unreasonable work expectations
  •  violence or threats of violence

If you feel you have been bullied, you should check on your rights. Contact us if you need more information about this.

What are harassment and victimisation?

Harassment and victimisation are shorthand ways of describing behaviour which could also be bullying,

but the Fair Work Act 2009 (the Fair Work Act 2009, Commonwealth) does not use the term ‘harassment’ or ‘victimisation’. This is why we use the blanket term ‘bullying’.

There are other laws which do refer to specific types of harassment, such as ‘sexual harassment’ or ‘disability harassment’. These laws are known as anti-discrimination laws.

In addition, harassing conduct based on your race, sex, age, disability, sexual orientation, religious belief or non-belief, marital status, gender identity, and numerous other protected attributes may give you rights under those anti-discrimination laws. Those laws also refer to victimisation of people who try to use those laws or take other action under those laws. For more information on anti-discrimination laws, click on the link to Discrimination and Your Rights At Work.

Certain types of victimisation, such as victimisation for exercising workplace rights, may also breach the general protections provisions of the Fair Work Act 2009 – you may have rights under those provisions. Contact us if you need more information about this.

What if the bullying happens when I am not at work, such as on social media?

The Fair Work Act refers to the bullying happening ‘at work’, but even if you are not at the workplace, it may be possible to make a claim of bullying if you were doing something which is connected to your work, such as working from home, or attending a work-sponsored social function.

If the bullying occurs on social media, but you are at work or doing a work-related activity, you may still be able to make a claim of bullying. Contact us if you need more information about this.

Can performance management be bullying?

Yes, performance management can be bullying, if it is not reasonable and/or not carried out in a reasonable manner.

Example:

  • Ahmed’s supervisor constantly insists that his performance is poor because Ahmed will not use a welding torch without protective equipment, and this slows him down. This is bullying, because although it is performance management, it is not reasonable to insist that Ahmed does not use protective equipment.
  • Lee’s boss always screams at her when telling her that she has made mistakes in her typing and tells her she must be more careful. This is bullying because although telling someone how to do their job is reasonable if the boss screams while doing this, the performance management is not being done in a reasonable manner.
How do I make a claim?
  • You can make an application for orders to stop the bullying, using the Fair Work Act 2009.
  • The application is in a form, which you need to fill out and send to the Fair Work Commission.
  • In the form, you will need to provide information including your details, a description of the bullying behaviour, and details of when the bullying happened. Contact us if you need more information about this.
How do I make a claim?
  • Most workers have the right to make an application for orders to stop the bullying, using the Fair Work Act 2009.
  • However, there are some exceptions. For example, some employers are not covered by the Fair Work Act.
  • If you are no longer employed by the employer, you do not usually have the right to make a claim (though there may be some narrow exceptions).
  • This is a complex issue, so you should always check on your rights. Contact us if you need more information about this.
What happens after I make a claim?
  • After you have sent your application to the Fair Work Commission, it will notify the person (or persons) against whom you have made a complaint and ask what they have to say.
  • Usually, there will then be a mediation or conciliation, at which the Fair Work Commission will encourage you and the other person to come to an agreement.
  • If there is no agreement, the Fair Work Commission may make a determination and will usually hold a hearing to decide:
    • whether or not bullying has happened and
    • if bullying has happened, whether there is a risk that the bullying may happen again.
What outcome can I expect if I prove there has been bullying?

The Fair Work Commission’s task is to prevent future bullying.

If the Fair Work Commission decides that bullying has happened and there is a risk of bullying in the future,

it can make orders designed to stop the bullying, including orders for

  • particular people to stop their bullying behaviour,
  • monitoring their behaviour,
  • compliance with an anti-bullying policy.
    • The Fair Work Commission cannot order payment of money (known as compensation). However, compensation may be available under other laws, apart from the anti-bullying laws, so you should always check on your rights. Contact us if you need more information about this.
I cannot face returning to the workplace – should I just resign?
  • Bullying can have a devastating effect on your health.
    • If you are feeling anxious or stressed, you should immediately get advice from your doctor or other health professional. Tell your doctor or other health professionals about the bullying, so that they have a record of your experiences.
  • We do not usually advise resigning, because once you leave your job, you may lose important rights.
  • You may be able to use your personal leave (sick leave) to stay away from work for a while.
  • You may also be able to make a workers’ compensation claim.
  • You should always get advice before making any decision about resignation.
  • Contact us if you need more information about this.
Are there any other relevant laws?
  • Occupational health and safety laws allow inspectors to investigate cases of bullying at work, but these laws do not usually entitle you to make a claim.
  • Anti-discrimination laws may apply to some types of bullying and may also give you a right to sue for compensation.
  • Other provisions of the Fair Work Act 2009 may give you a right to sue for compensation if the bullying conduct also breached those provisions (eg. general protections provisions).
  • Some bullying can be a crime. In those cases, it should be reported to the police.
  • This is a complex issue, so you should always check on your rights.
  • Contact us if you need more information about this.
Some Practical Advice

At Gordon Legal, we understand that it is sometimes difficult to make a complaint of bullying or similar offending conduct. Making a complaint is a very personal decision which may be affected by a number of factors, such as emotional anxiety, fear of retaliation, or even loss of a job.

Here are some simple practical things you can do, which may help if you decide to take action.

  1. Make notes. Whether or not you ultimately decide to take action, you should make clear notes of any troubling incidents, including the date, time and place where they occurred, and the names of anyone who was present. Make the notes on the same day, or as close as possible to the day on which the incident occurred, while it is still fresh in your memory. You may never need to use the notes, but if you do, they will be a useful contemporaneous record.
  2. Keep copies. If there are any documents which may help to prove that offending conduct occurred, keep copies of them in a safe place.
  3. Look after your health. If the offending conduct is making you feel anxious or stressed, consult your doctor, explain what has been happening and obtain advice about how to care for your health. In some cases, you may be able to make a claim under workers’ compensation laws.

Please get in touch if you need further advice about potential bullying you have suffered.