Workplace Bullying Lawyers FAQs

According to the Commonwealth Fair Work Act 2009, section 789FD, a worker is experiencing workplace bullying if:

• They are bullied whilst they are at work, and that they work in a constitutionally covered enterprise;
• This bullying may include behaviour or conduct by an individual or group that unreasonably effects the worker, or group of workers to which that worker belongs;
• The behavior or conduct of the offending individual or group is negatively affecting workplace health and safety;

The above usually does not apply to reasonable action taken by management to address issues with an employee’s performance or behavior.

For something to be considered ‘reasonable’ under the law, it should be ‘reasonable in all circumstances’.

Bullying can occur as an organised attempt to deny an employee an employment right or other entitlement. This is of particular concern for affected employees, as they may feel pressured to resign, lest they be dismissed by their employer. For example, an employer’s business is in decline and revenues are down.

Management may impose unreasonable sales targets, and bully those employees who are unable to meet these targets (which are demonstrably unachievable). Affected employees may feel forced to resign, fearing an impending dismissal on the grounds of inadequate performance, when in reality they may be entitled to a genuine redundancy in this case.

Another example of workplace bullying as a tool to prevent an employee from accessing employment benefits is in the form of an older employee, for example, over 50. The employee may have served in their role for 20 years, and accumulated a high amount of sick leave. Management may bully that employee, making them feel worthless or useless. The employee may resign, losing all the accumulated leave and other benefits that come with a long period of service.

Some forms of workplace bullying may entitle an affected employee to greater legal recourse than a bullying complaint made under sections 789FC and 789FF of the Commonwealth Fair Work Act 2009.

It is important that any bullied employee closely examine the circumstances of their case before lodging a bullying complaint, and gather any evidence that may assist their case. This is due to the fact that the employer may be represented by legal professionals who are able to exploit gaps in a bullied employee’s case.

Although the cost to submit a complaint to the Fair Work Commission is only $77.80 at the time of writing, this cost may protract into a lengthy, expensive, and exhausting legal battle if the case is not soundly prepared in advance.

An application should be made by an employee who has been bullied and has no other means of remedying the situation. Alternative remedies may include:

• If the affected employee is bound by an enterprise agreement, they may be able to follow the formal grievance procedure outlined in that agreement;
• An affected employee may be able to follow formal grievance procedure outlined in their employer’s company procedures and policies. Employees should familiarise themselves with these procedures and policies.
• There may be a formal grievance procedure detailed in the employment contract of the affected employee, they may be able to follow this procedure to achieve an effective remedy;
• An affected employee may make a claim to the Human Rights and Equal Opportunity Commission under the Victorian Equal Opportunity Act 2010;
• An affected employee may pursue a claim under the Victorian Accident Compensation Act 1985, although such claims are often unsuccessful.

If you decide to make an application to the Fair Work Commission under the bullying provisions listed in the Fair Work Act 2009, you should be aware that you will need to do so at your own expense. The outcome of a successful application will be that you keep your job, and the bullying ceases. You must consider that the process of making an application is lengthy, as is the deliberation that will follow. During this time you may have to endure the bullying, which could cause further damage to your wellbeing.

You must also consider whether you really want to remain in your job long term. The Fair Work Commission has published statistics that show as few as 1% of unfair dismissal applicants are reinstated by their employers, even though such reinstatement is the main aim of the commission under the Act. It has been the case that the Fair Work Commission has ordered that an apology be served as a remedy for workplace bullying. There is little value in an apology. Sometimes workplace bullying is only resolved through determining a termination package for the affected employee.

You should only make a claim if your technical proficiency in the role is adequate and you can demonstrate that the bullying behavior is repetitive and wholly unwarranted. Those accused of workplace bullying will often accuse a bullied employee of being unable to perform tasks adequately or efficiently. Be prepared to substantiate your credibility as a member of the workplace if you intend to make a bullying claim.

If you believe any colleagues who have witnessed the bullying take place may support you in your case, you should obtain written statements from them prior to making your claim. A psychologist or other healthcare professional may also be able to provide a written report detailing the effects the bullying has had on your personal well being.

To conclude these three points, it may be unwise to lodge a complaint about workplace bullying to the Fair Work Commission if there are more appropriate remedies available.

Prior to lodging a bullying complaint, you should have your case examined by a lawyer as the opposing party will often employ a lawyer to exploit any legal weaknesses of the case.

Bullying is behaviour or conduct by an individual or group that is unreasonable and poses a threat to workplace health and safety that is made towards you or a group of employees that you are a part of.

Section 789 of the Commonwealth Fair Work Act provides some examples of behavior that may constitute bullying:

• Intimidating or aggressive conduct;
• Humiliating or belittling comments;
• The spreading of malicious rumors;
• Playing practical jokes, teasing, or performing hazing or ‘initiation ceremonies’;
• Deliberate exclusion from work-related functions or events;
• Setting unreasonable work expectations, including too little or too much work, or work that does not correspond with an employee’s level of skill or experience;
• Displaying offensive material;
• Pressuring another employee to behave inappropriately.

Micromanagement occurs when employees are unnecessarily interfered with by managers. This may be in the form of excessive interactions with an employee or their work that occur on a regular basis. This sort of behaviour is usually unwanted. Examples of such behaviour include:

• Managers constantly requesting updates or reports;
• Managers requesting to view any/all work produced by you;
• The review of all correspondence that involves you;
• Requesting that other people, including other employees or customers/clients provide a review of your performance;
• Constantly being asked to prove that you’re busy, or what you’re working on;
• Managers constantly commenting or focusing on areas of your work which you need to improve, even though you may be performing well in other areas.

According to section 789FD(1) of the Commonwealth Fair Work Act 2009, an employee is bullied if an individual or group repeatedly engages in unreasonable behavior or conduct towards that employee or group of employees to which the victim belongs, and that such conduct or behavior poses a risk to workplace health and safety.

Section 789FD(2) of the Act states that reasonable activity undertaken by management to ensure appropriate productivity or performance by an employee does not constitute bullying.

In the case of A.N [2014] FWC 6285 (31 October 2014), the Fair Work Commission found that bullying can in fact be evidenced by micromanagement if that micromanagement is combined with an intention to bully that employee. In this case, the manager was motivated by the desire to dismiss an employee and micromanaged that employee. This conduct was found by the Commission to constitute bullying.

In the case of A.B [20150 FWC 3352 (4 June 2015), the Commission held that management action must be performed in a ‘reasonable manner’. Whether or not action taken by management is deemed to be reasonable can depend on:

• The nature of the management action;
• The circumstances and facts that gave rise to the requirement for the management action’
• The way in which the management action has impacted upon the employee involved.

The Commission held that an increase in performance review or performance management does not constitute bullying, especially if this increase is required to ensure the enterprise’s financial well being.

Personality conflicts may result from a variety of circumstances or scenarios. Factors at play may include your personality, work ethic, workplace structure or hierarchy, personal ambition, or other personal traits.

Managers seeking to ‘make their mark’ in the workplace may decide that treating employees fairly and decently is less important than promoting their own agenda. A personality conflict may arise if you take exception to some or all of such a manager’s agenda or management style.

Resultant bullying may be in the form of excessive micromanagement of you or your team, or an excessive focus on any alleged minor misconduct, which may be made to seem worse than it actually is.

If you have been harassed or bullied, it is important that you make a complaint to your employer, guided by the employer’s grievance policy and/or procedures. If your employment is bound by a code of conduct, Enterprise Bargaining Agreement, or employment policy, you may be able to refer to these for information regarding grievance procedures.

Employees whose employment is bound by an Enterprise Bargaining Agreement (EBA) may benefit from increased regulation of disciplinary proceedings launched against them prior to termination of employment. It is important that you check whether or not you are covered by an Enterprise Bargaining Agreement. EBAs are commonly implemented in unionised workplaces. An example of a procedure laid out under an EBA may be:

• When/where disciplinary action is deemed necessary, a management representative must notify the affected employee of the reason for the action. The first warning may be oral and should be recorded on the employee’s personal record;
• If the problem persists, the matter will again be discussed with the employee and a second warning will be given to them in writing and recorded on their personal record;
• If the behaviour continues, management must again see the employee and determine whether or not a final warning is to be given. If a final warning is to be given, it must be issued in writing, with a copy sent to the employee’s Union.
• If the behaviour continues to persist, the employee may now be terminated with the authority of senior management;
• Dismissal of an employee may occur earlier for acts of wilful or serious misconduct;
• If any disciplinary action is to be disputed, other than that regarding the termination of any employee who has not yet completed at least six months employment with the employer, the matter shall be referred to Fair Work Australia for it to be resolved. Any resolution will be accepted by the parties as final.
• If a 12 month period elapses after any warning without further warnings or action being required, all reports relating to the warning or action shall be removed from the employee’s personal record.

The first warning may be oral, but is to be recorded on the employee’s personal record. If the problem persists, the matter is to be discussed with the employee and a second warning, this time, written, will be issued and recorded on the employee’s personal record. If the issue is still not resolved, a final warning may be issued in writing, with a copy being sent to the relevant Union.

If the problem reoccurs within 12 months, the employee’s position can be terminated with the authority of senior management. Any dispute arising as a result of disciplinary action must be referred to Fair Work Australia for resolution. Any resolution found here will be accepted by both parties as final.

Any complaint made to your employer by you must be investigated fully, and treated confidentially. It is possible that the bullying manager will cease their adverse treatment of you once they are made aware of your feelings, particularly if you demonstrate a willingness to pursue their investigation through official channels.

The wellbeing of employees is important to any good employer, so they will usually investigate any complaints and take appropriate action where required.

If your claim is substantiated by your employer, your employer must take action to ensure that the bullying or harassment stops. This may be achieved by counselling a bullying manager so that they understand what conduct is deemed acceptable and what is not. You may also receive counselling from your employer.

If, upon investigating your complaint, your employer has found insufficient evidence to establish your allegations, you may find yourself at a loss as to what to do next. Your employer may not have found sufficient evidence of bullying to support your claim, or your employer may believe that the manager did not act inappropriately under the circumstances.

In such a case, you may continue to experience harassment or bullying from your manager. In a worst-case scenario, your employer may use the investigation to attack your work or your personal conduct. If this occurs, and you believe you have been harassed and not offered appropriate support or resolution, you may need to consult with an employment lawyer who can provide advice as to your legal rights under these unfortunate circumstances.

If, after the above, you continue to experience bullying and harassment, you may wish to lodge a complaint with the Victorian Human Rights and Equal Opportunity Commission. Due to a protected attribute under section 6 of the Victorian Equal Opportunity Act 2010, the Commission will investigate your complaint as a complaint of discrimination. Under section 6 of the Act, protected attributes include sex, race, and political beliefs. Subsection c provides protection for employment activity.

Section 4 of the Act defines employment activity as, an employee, acting in their individual capacity:

• Making a reasonable request to their employer, in writing or orally for information regarding their employment entitlements;
• Communicating to their employer that they are concerned that they are not being, have not been, or will not be given some or all of their employment entitlements.

You may find additional protection under the Commonwealth Fair Work Act 2009.

The Act provides 10 National Employment Standards, including work hours, flexible work arrangements, leave entitlements, and termination payments. Section 44 of the Act ensures that your employer can not legally breach these standards.

You are also protected under the Act from adverse treatment resulting from your attempting to exercise a workplace right. A workplace right may be defined as:

• The entitlement to the benefit of a workplace instrument or workplace law;
• The ability to participate in or initiate proceedings under a workplace instrument or workplace law;
• The ability to make an inquiry or complaint to either – a person who has the capacity to seek compliance with that workplace instrument or workplace law – or in relation to your employment.

Your employer is prohibited from taking any adverse action against you for possessing, proposing to exercise, or exercising a workplace right. Your employer is also prevented from taking adverse action to prevent you from exercising a workplace right.

Adverse action relating to employment is defined in section of 342 of the Act as the dismissal, injury, or alteration of employment that results in prejudice or discrimination between employees.

Section 351 of the Act protects you from adverse action on the basis of sex, age, race, and other inherent attributes.

If you lodge a claim with either the Human Rights and Equal Opportunity Commission, or Fair Work Australia, you are entitled to the protection of certain victimisation provisions found in the Victorian Equal Opportunity Act 2010. Section 103 of the Act prohibits an employer from victimising you for making a complaint to an external authority. Section 104 of the Act defines victimisation as the subjection to detriment due to:

• Having brought a dispute to the Human Rights and Equal Opportunity Commission;
• Having made a complaint under a previous Act.

If you are treated adversely following a complaint you made about your employer or manager, you are protected by the Act and may make a further claim against your employer.

Your employment may still be at risk, despite these protections. You may be targeted with allegations of poor performance or misconduct, your employer may even provide you with formal warnings, which are a precursor to lawful termination. These attempts may be an attempt by management to bully you into resigning voluntarily, or to prepare misconduct proceedings prior to your dismissal.

In this case you have the option of applying for an injunction to prevent your employer from dismissing you.

Bullying may be dealt with as an Occupational Health and Safety issue, and dealt with as such. Additionally, amendments to the Victorian Crimes Act 1958 mean that bullying can also result in criminal prosecution and a potential term of imprisonment in serious cases.

Under this Act, bullying comprises behaviour that is repeated, unreasonable, and directed towards an employee or group of employees, that creates a risk to health and safety. Breaches of this Act are investigated by WorkSafe Investigators. Criminal sanctions, including imprisonment of up to five years and/or a large fine, may result from such investigations, as it is prohibited for an individual to behave in a way that recklessly endangers employees at a workplace by placing them at risk of serious injury.

• Aggressive yelling, screaming, or general verbal abuse;
• Language that is intimidating or abusive;
• Excluding or isolating a victim or victims;
• Assigning impossible tasks or meaningless tasks to a victim;
• Continual criticism of a victim;
• Sabotaging someone’s ability to perform their job by withholding information and/or resources;
• Belittling opinions held by others;
• Changing someone’s employment without explanation;
• Not giving due credit, or taking credit for somebody else’s work.

The Victorian Crimes Act 1958, section 21A was extended some time ago. This extension involved changing the offence of stalking to include workplace bullying. If you have been subjected to the following treatment, you may be covered by this extension to the Crimes Act 1958:

• Received threats;
• Been subjected to offensive or abusive language by another employee;
• Been subjected to offensive or abusive acts by another employee;
• Another employee has performed abusive or offensive acts in your presence;
• Another employee has acted in any way that could be expected to reasonably – cause mental or physical harm to the victim of this action, including self-harm; aroused fear or apprehension in the victim for their own safety or that of any other person.

Prosecution of a bully under the Crimes Act 1958 does not exclude the bully from also being fined/prosecuted under the Victorian Occupational Health and Safety Act 2004.

The best remedy for your situation may be a discrimination claim made through the Victorian Human Rights and Equal Opportunity Commission. An alleged breach of the Victorian Equal Opportunity Act 2010, and an outline of the behaviour and corresponding provisions that have been contravened, must be included in the claim.

A deed of release is a crucial and legally binding document that establishes a post-termination agreement between you and your employer. It may contain a final settlement as to legal rights after the end of your employment. Often, a deed of release negotiates a sum of money which may be considered compensation for your termination, upon receipt of this money, you generally agree not to bring legal proceedings or disturbance against your former employer.

Should you attempt to bring legal proceedings against your former employer in the future, your former employer will refer to this deed of release, which you have signed, and ask the court, tribunal, or other body to prevent you from continuing your claim.

Also known as a termination letter, a deed of release often contains statements regarding issues such as taxation, severance pay, legislation which you cannot rely upon to bring legal proceedings against your former employer, post-termination restraint on trade covenants, and assurances on your own behalf that you will not make derogatory statements about your former employer, as well as maintaining confidentiality.

You (or your lawyer) may request a statement of service, or written reference from your former employer, so that you may continue your career without being stigmatised due to your dismissal.

A deed of release, when properly negotiated by both parties, reflects a mutually beneficial agreement between your former employer and yourself. This is regarded as a positive and respectful way to end an employment relationship. However, as a deed of release constitutes a legally binding document, you must be aware of the consequences of signing one, especially without proper consideration. Many deeds of release contain agreements that the terminated employee will not bring any legal action against a former employer (excluding WorkCover claims).

With this in mind, it is crucial that you thoroughly consider any documents that your employer provides for you to sign. It is recommended that you take home a document such as a deed of release, and thoroughly scrutinise it in case its terms are not agreeable.

It is possible that under such stressful, and possibly unexpected, circumstances as hearing of your impending termination, you may have signed a document such as a deed of release when it is thrust in front of you. If you have had a successful tenure with the employer, and you usually managed to meet or exceed performance expectations, you may believe that your employer would consider your best interests when providing a document such as a deed of release.

This may not be the case, and if you signed a deed of release containing terms which are detrimental to you, you should obtain legal advice as to how you may be compensated. You will need to apply to a court to have the signed deed of release set aside. Whether or not the deed will be set aside depends on a variety of facts and the specific circumstances of your termination.

There are various basis on which you may rely on to seek to establish that the signed deed of release should not be honoured:

• Duress

A deed of release signed under duress is the most obvious example of a situation where the deed is likely to be set aside. Duress may in this case refer to economic or physical duress where you were subjected to excessive pressures to sign a deed of release. Threats of violence or other adverse behaviour if you do not sign the deed, made to you or an associate, may constitute an act of duress by your employer. If you can demonstrate that a threat to your safety, or the safety of someone you know, is the reason that you signed a deed of release, you may have grounds for it to be set aside.

Economic duress describes a situation where enormous pressure is placed on you to sign a document without any threats to your physical safety being made. Your employer may attempt to persuade you to resign by offering severance pay, or to convince you that you are not entitled to more money. Demonstrating to the court that you were under considerable economic pressure to sign a deed of release may be sufficient grounds for it to be set aside.

• Undue influence

Undue influence refers to a situation in which the relationship between parties ensures that no fair agreement can be reached. There are certain relationships that are deemed by the law to be inherently unbalanced, and any agreement entered into by participants in such relationships may be presumed unfair and set aside upon application to the court. Although the employee/employer relationship is not deemed to be inherently unbalanced, there are many circumstances where there are explicit power imbalances in the relationship between employee and employer.

If you are able to demonstrate that the relationship between you and your employer was inherently unbalanced, it is then up to your former employer to demonstrate that the agreement entered into by you was made in a way that is fair.

• Unconscionable bargaining

During negotiations concerning important agreements like a deed of release, it is possible that you may not fully understand the implications of the agreement you are making with your former employer. Factors such as your language ability, education, or mental disorders/disability may be considered when determining whether or not the agreement was made as a result of unconscionable bargaining. Unconscionable bargaining may provide grounds for having a deed of release set aside even if there was no inherent imbalance in the relationship between you and your employer, and/or the agreement was not made under duress.

The ability to launch a successful application to have a signed deed of release set aside are strongly dependent on the specific circumstances of your case. It is recommended that you seek legal advice if you have signed such a document which later turned out to be detrimental to you, as pursuing compensation may be a difficult process due to the fact that such documents are legally binding.