Workplace Bullying (NSW)
Workplace bullying can seriously harm the mental health of employees and lead to penalties for employers. This article looks at the New South Wales and national laws related to workplace bullying.
What is workplace bullying?
The Commonwealth Fair Work Act 2009 states a person is bullied at work if a person or group repeatedly behaves unreasonable towards the worker or the worker’s group, and the behaviour creates a risk to health and safety
Unreasonable behaviour is behaviour that a reasonable person in the circumstances would consider to be unreasonable. This includes behaviour that is victimising, humiliating, intimidating or threatening.
Bullying, whether intentional or unintentional, includes:
- abusive, insulting, belittling or offensive language or comments;
- unjustified criticism or complaints;
- deliberate exclusion from workplace activities;
- withholding information or resources needed to work effectively;
- setting unrealistic timelines or constantly changing timelines;
- setting tasks unreasonable below a worker’s skill level;
- spreading misinformation or malicious rumours;
- changing rosters or leave to deliberately inconvenience a worker.
Work Health and Safety Act 2011
Under the NSW Work Health and Safety Act 2011, a workplace has a duty to ensure, so far as is reasonably practicable, that workers are not exposed to health and safety risks as a result of work carried out for the business. This includes the prevention and responding to workplace bullying. A workplace should:
- respond to a bullying complaint quickly and reasonable in line with workplace policies and procedures;
- treat all bullying complaints seriously;
- maintain confidentiality;
- keep the complainant informed of progress in attempting to resolve the matter;
- advise of support options;
- communicate the outcome, the reasons for it, and any right of review.
All workers who experience workplace bullying must attempt to resolve the grievance with their employer before taking legal action.
SafeWork NSW is responsible for administering the Act. If an employer fails to act on a bullying complaint, a complaint can also be lodged with this agency, which has the power to penalise breaches of the Act and take remedial action. Action is taken by the agency on behalf of the employee so the employee is not responsible for the costs. Proceedings do not normally result in compensation.
Fair Work Commission (FWC)
The Fair Work Act 2009 allows a non-government worker who has been bullied at work to apply to the Fair Work Commission for an order to stop the bullying.
“Worker” means a person who performs work in any capacity, including an employee, contractor, subcontractor, outworker, apprentice, trainee student on work experience, or volunteer.
The FWC must start to deal with an application within 14 days of receiving it. It can make any order it considers appropriate to stop bullying if it is satisfied the worker has been bullied and there is a risk the worker will continue to be bullied. In forming the order, it must consider:
- any interim or final outcomes from any investigation into the matter by another body;
- any procedure available to the worker to resolve grievances and disputes, and any interim or final outcomes from that procedure.
FWC cannot issue penalties or award compensation, but an FWC order does not prevent a bullied person from seeking and being awarded compensation.
Australian Human Rights Commission (AHRC)
The AHRC can investigate and resolve complaints of bullying that are based on a person’s sex, disability, race or age, as well as other characteristics such as a person’s criminal record, trade union activity, political preference or religion.
Compensation for workplace bullying
Under the Workers Compensation Act 1987, an injury for which compensation may be payable includes the aggravation of a psychological or psychiatric disorder. Such injury arising from bullying can be compensable, but the aggravation must arise out of or in the course of employment.
A person being bullied in the workplace must seek medical attention. A doctor may be able to issue a medical certificate to an employee who is seeking paid leave as a result of bullying and who is wanting to lodge a claim for workers’ compensation under the Act.
Workplace bullying cases
NSW v Mannall (2005)
An employee was awarded $339,722 in compensation for psychiatric injury caused by persistent bullying after her promotion to a team leader position. Other employees had resented the removal of the previous team leader and had shown hostile behaviour to the employee, including disobeying requests, making offensive and vindictive comments, and failing to help during busy periods. The employee sought help from her manager and other managers, who all failed to intervene. She left the position due to the development of psychiatric conditions including anxiety and depression. The Supreme Court found the employer to be negligent in its duty of care to create a safe working environment.
Bailey v Peakhurst Bowling and Recreation Club (2009)
An employee was awarded $507,550 in compensation for persistent harassment, intimidation and bullying by her supervisor. This behaviour over two years included vulgar language, threats of sacking, pressure to break liquor licensing rules, and changes in her work classification that cut her wage and seniority. The employee was diagnosed with anxiety, Post-Traumatic Stress Disorder and depression. Her prognosis was that it was unlikely she would return to paid employment. The District Court ruled the employer had breached its duty of care to provide a safe working environment.
For advice or representation in any legal matter, please contact Armstrong Legal.