Workplace bullying: employer obligations

• Repeated: a single incident is not bullying under this definition, although it may still be misconduct, harassment or a WHS issue.
• Unreasonable: the behaviour is assessed objectively, in all the circumstances, not only by how the worker felt about it.
• Risk to health and safety: the behaviour must create a risk, not necessarily an injury.
• From anyone at work: the bullying can come from a colleague, manager, customer, client, supplier or visitor.

The Fair Work Ombudsman gives examples such as aggressive behaviour, teasing or practical jokes, pressuring someone to behave inappropriately, excluding someone from work-related events, and unreasonable work demands (bullying in the workplace). Bullying does not need to be linked to a protected attribute; where it is, discrimination law may also apply.

The Fair Work Commission says it is reasonable management action to start performance management, take disciplinary action for misconduct, tell a worker their performance is unsatisfactory or their behaviour is inappropriate, direct reasonable duties and maintain reasonable workplace standards (about reasonable management action). If the action, or the way it is done, is unreasonable and repeated, it can still be bullying.

• Base performance concerns on facts and examples, and give the employee a fair chance to respond and improve.
• Hold meetings privately and respectfully; never criticise someone in front of colleagues.
• Follow your own policies and apply standards consistently across the team.
• Set achievable expectations and timeframes.

A fair process is set out in managing underperformance. The PIP builder and warning letter help keep the process documented. An employee lodging a bullying application does not, of itself, stop a performance process or investigation.

Sole traders, partnerships and some state government bodies may fall outside the national scheme; their workers may be covered by state WHS law instead (who can apply). If a stop-bullying order is not followed, the worker can seek help from the Fair Work Ombudsman.

From 11 November 2021 to 5 March 2023, Part 6-4B also covered orders to stop sexual harassment. For sexual harassment that happened or started before 6 March 2023, the Commission can only deal with applications for orders to stop it. Unlike bullying, sexual harassment can be a single incident and does not need to create a risk to health and safety. Under WHS law it is also a psychosocial hazard you must manage.

Safe Work Australia’s bullying page confirms businesses must manage the health and safety risks of workplace bullying. Prevention works better than reaction:

• Set behaviour standards in a written policy that covers workers, managers and third parties, and explain how to report.
• Address work-design causes that make bullying more likely, such as high job demands, poor role clarity, poor support and unresolved conflict.
• Train managers to give feedback and manage performance reasonably, and to respond early to conflict.
• Watch for signals: repeated complaints about one area, high turnover or absence in one team.
• Consult workers and health and safety representatives on the controls.

The full risk management method is in psychosocial hazards and risk assessment. For NSW, see NSW psychosocial compliance.

1. Acknowledge the complaint quickly and check for any immediate risk to health and safety.
2. Consider interim measures, such as changing reporting lines or rosters, without disadvantaging the complainant.
3. Decide the pathway: an informal resolution for lower-level conflict, or a formal investigation for serious or repeated allegations.
4. Give the respondent the details of the allegations and a real chance to respond; keep the process confidential.
5. Make findings on the evidence, take proportionate action and tell both parties the outcome to the extent appropriate.
6. Review the hazard. The model psychosocial code notes a complaint can need both a conduct investigation and a WHS look at the underlying hazards, and a risk can remain even if the allegation is not proven.

Do not treat a worker less favourably because they complained. Making a complaint about their employment can be a workplace right protected by the general protections in the Fair Work Act.