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Workplace bullying – remedies for an employee?

What remedies are available to an employee that is alleging bullying at work?
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Workplace bullying – remedies for an employee?

Workplace bullying – remedies for an employee?

28 May 2021

What remedies are available to an employee that is alleging bullying at work?

Q We are a medium-sized company which has never been subject to a claim by an employee of bullying behaviour by a member of management. The employee is threatening to take a claim to a number of different tribunals, including the Fair Work Commission.

The company is familiar with the anti-bullying process generally followed by the Fair Work Commission but is unaware of any other alternatives this employee could pursue regarding an allegation of bullying in the workplace?

A An employee seeking compensation for alleged bullying may seek a remedy through a number of different jurisdictions.

Fair Work Commission

The Fair Work Commission may make any order it considers appropriate if an allegation of bullying is sustained, other than the payment of compensation, reinstatement or penalties. Examples of possible orders include:
  • that certain specified behaviour stop,
  • the employer monitor certain behaviour
  • persons provide relevant information, support or training, or
  • the business review its relevant management systems.

Contravening a stop bullying order can result in penalties.

Other jurisdictions

An employee who brings a bullying claim to the Fair Work Commission can also seek other remedies for bullying concurrently. These may include:
  • raising their dispute with the relevant state or territory workplace health and safety regulator
  • making a claim for workers’ compensation
  • alleging breach of the employment contract
  • initiating an adverse action claim under general protections laws under the Fair Work Act,
  • proceedings under the relevant Commonwealth, state or territory discrimination law.

What is workplace bullying?

A person is bullied at work if another individual or group of individuals repeatedly behaves unreasonably towards the employee, and that behaviour creates a risk to health and safety. This may include victimising, humiliating, intimidating or threatening an employee. ‘Repeated behaviour’ means persistent behaviour and incorporates a range of behaviours over time. A one-off serious instance of aggravated behaviour, such as violence, is not considered bullying but would be dealt with through other laws such as criminal law. The definition of bullying excludes ‘reasonable management action’.

What is not workplace bullying?

Workplace bullying would not include:
  • reasonable performance management
  • reasonable disciplinary action
  • reasonable allocations of work, and
  • fair and constructive feedback on an employee’s performance.

Bottom line: An employee alleging bullying in the workplace may seek a remedy before a number of different Commonwealth, state or territory courts or tribunals.

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