Bullied at work? What the Fair Work Commission looks for when making stop bullying orders – Employment Litigation/ Tribunals

Employees who reasonably believes that they have been bullied at
work can apply to the Fair Work Commission for an order to stop
bullying. When assessing these claims, the Commission will consider
the evidence and determine whether that evidence constitutes
bullying behaviour.

The Fair Work Act states that bullying in the workplace occurs
when an employee (or group of employees) subjects a colleague to
repeated unreasonable behaviour, which has the risk of causing
damage to the recipient’s health and safety.

Reasonable management action carried out reasonably is not
considered workplace bullying.

What is repeated unreasonable behaviour?

While no specific number of incidents is required for behaviour
to be considered ‘repeated’, there must be more than one
occurrence. Under this definition, repeated unreasonable behaviour
refers to persistent behaviour, or a range of behaviours, over
time.

Unreasonable behaviour can take many forms, including
intimidation, threatening, humiliation, shouting, singling-out,
physical or verbal abuse, belittling, victimising, innuendo,
disrespect, mocking, and discrimination. The test applied by the
Fair Work Commission when considering if the behaviour was
unreasonable is whether a reasonable person would see it as
unreasonable in the circumstances.

Risk to health and safety

For behaviour to be considered bullying, it must risk the
recipient’s health and safety. This risk includes the
possibility of danger to health and safety, not just actual danger.
The bullying behaviour must create a risk to the recipient’s
health and safety, but it does not have to be the only cause of the
risk.

What does at work mean?

For an employee to be protected by the Fair Work
Commission’s anti-bullying laws, any alleged bullying must
occur while they are at work. This is not defined in the
legislation but is generally taken to mean while the employee is at
the regular physical workplace or anywhere tied to work activities.
For example, a worker may be considered ‘at work’ if
working from home or another company’s premises through labour
hire.

The concept of being at work encompasses when an employee is
performing work, regardless of time or location, and is engaged in
activities authorised by their employer, such as during break
times.

Risk of continued behaviour

Finally, for the Fair Work Commission to make a stop bullying
order, there must be an ongoing risk that the employee will
continue to be bullied by the accused individual or group.
Applications must meet both criteria – the employee experienced
repeated unreasonable behaviour at work that created a risk to
their health and safety, and the risk is ongoing.

In Lacey and Kandelaars v Murrays and Cullen, two
bus drivers made an application to stop bullying by their manager.
The alleged repeated unreasonable behaviour included finding fault
with work when there was none, raising his voice, being
intimidating, and hiding in the bus to frighten the worker. The
Commissioner found that the manager had engaged in repeated,
unreasonable behaviour that had caused a risk to both workers’
health and safety but because the organisation had already changed
the employees’ reporting lines, a stop bullying order was not
made. Despite the finding of repeated unreasonable behaviour, the
change in reporting line removed the risk of further bullying, so
the claim did not meet both criteria.