What is workplace bullying?
Workplace bullying can include a wider range of conduct than people often expect. It can be physical, verbal, social or psychological.
Workplace bullying, and harassment can include, but is not limited to, the following kinds of conduct:
- Making physical threats of violence;
- Making unnecessary or hostile physical contact such as pushing, slapping or grabbing;
- Ganging up with other members of the workplace or attempting to psychologically unsteady you;
- Preventing you from participating in work-related activities;
- Preventing you from doing your job by withholding resources or information;
- Forcing you to participate in unnecessary and humiliating rituals;
- Setting tasks which are humiliating or otherwise not related to your job;
- Overloading you with work which you have no reasonable prospect of completing and criticising you in relation to same; or
- Making comments in relation to your ethic, sexual or socio-economic background.
What is not workplace bullying?
Workplace bullying does not include actions which are legitimately taken by your employer. The key test is whether the employer is acting reasonably in taking a given action. For example, employers are entitled to terminate, demote or discipline an employee. ‘Reasonable management action’, or legitimate actions taken in relation to a worker may include:
- Restructuring or making changes to a workplace which impact upon the worker;
- Allocating working hours in accordance with operational requirements;
- Informing the worker of unsatisfactory performance or inappropriate behaviour;
- Taking disciplinary measures against the worker for a valid reason; or
- Declining to promote the worker.
If you feel that your employee has unreasonably taken an action against you, you may have recourse through the Fair Work Commission or Ombudsman. However, strict time limitations apply – usually 21 days, so contact us immediately in the event that you feel your employer has wrongfully terminated your employment or taken a disciplinary action.
The key point is that such actions must be reasonable in the circumstances and in accordance with the employer’s policies and procedures and applicable industrial relations legislation. For example, privately and objectively informing a worker of unsatisfactory performance will almost always constitute a reasonable management action. While on the other hand, ridiculing the employee’s performance at a staff meeting may constitute workplace bullying.
What is workplace harassment?
Sexual harassment is defined by section 28A of the Sex Discrimination Act 1984 as unwelcome sexual advances, unwelcome requests for sexual favours or other unwelcome conduct of a sexual nature where a reasonable person would have anticipated the possibility of the victim being offended, humiliated or intimidated.
Examples of workplace sexual harassment might include:
- Sending sexually explicit emails or messages;
- Displaying sexually explicit photographs; or
- Asking questions relating to a worker’s sex life.
What is workplace discrimination?
Section 18C of the Racial Discrimination Act 1975 prohibits behaviour which is likely to offend, insult, humiliate or intimidate another person because of their race, colour, national or ethnic origin.
Section 25 of the Disability Discrimination Act 1992 prohibits treating another person with a disability less favourably than they treat a person without a disability on the ground of the person’s disability.
Examples of workplace discrimination might include:
- Telling offensive jokes in relation to particular ethnic groups;
- Displaying racially offensive slogans; or
- Taunting or insulting a person in relation to a disability.
What is a worker or workplace for the purposes of workplace bullying, discrimination and harassment?
A workplace doesn’t just include an office environment where you are an employee. It also includes:
- Government departments;
- Worksites where you are working as an apprentice;
- Workplaces where you are interning or undergoing work experience;
- Places where you volunteer; or
- Places where you work as a contractor or sub-contractor.
You do not need to be an employee in order to allege that you are being bullied or harassed in the workplace.
What you should do if you are being bullied, harassed or discriminated against in the workplace?
If you believe you are being bullied or harassed in the workplace, the most important thing you should do initially is to document the bullying and/or harassment. You can keep written notes as to the date and time of the conduct, what was said, who said it, who else may have witnessed the conduct, and what you did to attempt to stop the conduct. This will assist greatly when it comes time to make a complaint or take legal action against your employer. People naturally forget details such as dates or witnesses as time goes on, and through documentation will make you far more credible as a witness.
Check to see what your employer’s policies and procedures are in relation to workplace bullying and harassment. In the first instance, you should follow these procedures and document what you have done towards that end. Such procedures usually involve the submission of a complaint to a more senior member of staff or a HR contact. In the event that the conduct does not stop, it is time to contact one of our experienced lawyers to arrange an initial consultation.
We can assist you in making a complaint to:
- Workplace Health and Safety Queensland
- Australian Human Rights Commission
- Queensland Anti-Discrimination Commission
Or to make an application to the Fair Work Commission or to discuss your other options going forward.
Orders of the Fair Work Commission to stop bullying
The Fair Work Commission can make an order to cease particular types of conduct if it finds that there is a risk that the complainant will continue to be bullied in the workplace. By definition, this means that such an order can only be made while the victim is still working at the workplace.
In order to make such an order, the behaviour must be unreasonable, it must be repeated and it must pose a risk to the worker’s health and wellbeing.
The Fair Work Commission will issue such an order following a conference or formal hearing. Compensation is not awarded, rather, the Commission’s aim is to allow for the worker to continue working at the workplace free from the conduct which constitutes bullying or harassment.
Agreements facilitated by the of the Queensland Anti-Discrimination Commission
In the event that you have been bullied in the workplace as a result of:
- A personal attribute such as your age, ethnicity or gender; or
- Sexual harassment or vilification
We can assist in making an application to the Queensland Anti-Discrimination Commission. They will then attempt to facilitate an agreement between your employer and yourself which may include compensation.
In the event that an agreement cannot be reached through conciliation, the matter may be referred to the Queensland Industrial Relations Commission for a public hearing.
Investigations by Workplace Health and Safety Queensland
In the event that you are being bullied at work in a manner which does not constitute discrimination, sexual harassment or vilification and the conduct poses a risk of illness or injury, you may refer the matter to Workplace Health and Safety Queensland. This may lead to them investigating the conduct, policies and procedures of the workplace and issue directions to cease the conduct. Compensation is not ordered by Workplace Health and Safety Queensland.
What to do if your employment has been terminated or if your employer has taken an adverse action against you
If your employment has been terminated in the context of workplace bullying, harassment or discrimination, contact one of our lawyers immediately. You may have rights against your employee – but often, these rights will be lost after 21 days from the date of termination.
We can assist you in applying to the Fair Work Commission for an unfair dismissal, general protections dismissal or unlawful dismissal claim. In such circumstances, the Commission, after a process of conciliations and/or hearings may order for your employment to be reinstated or for your employer to compensate you.
If you have been ‘forced out’ or made redundant following bullying, harassing or discriminatory conduct, it may be that the redundancy is not in fact genuine. You may be entitled to receive entitlements and compensation. However, you will need to act quickly, as the timeframe for bringing an application to the Fair Work Commission in relation to an unfair dismissal is 21 days from the date of termination.
Similarly, if your employer has taken an adverse action (such as a demotion) against you by reason of your:
- Sexual orientation
- Marital status
- Political opinion
- Carer responsibilities
- National or social origin
Then we can assist you in making an application to the Commission. The Commission may elect to commence litigation against your employer, following which a court may make an order for reinstatement, injunctions or compensation.
Contact us while you retain your rights
Given the time limits which may apply in employment disputes, it is imperative that you get help as soon as possible. If you find yourself unable to resolve bullying, harassing or discriminatory conduct through your workplace’s policies and procedures or should your employment be terminated, contact a lawyer straight away. There are usually multiple remedies and avenues for resolution available. Forge Legal will be able to determine a solution which assists you in achieving your desired outcome. Contact us today on 1300 0 FORGE for help with your situation.