Being treated badly at work can wear you down quickly. It can affect your sleep, your health and your life at home. Many people are not sure whether what they are facing counts as bullying under the law. Others do not know that there is a national tribunal process aimed at stopping it.
The Fair Work Commission can make orders to stop workplace bullying under the Fair Work Act 2009. These orders look forward and aim to prevent further harm. This guide covers what counts as bullying, who can apply and what the Commission can and cannot do.
What counts as bullying at work
The Fair Work Commission explains that bullying happens when a person or group behaves unreasonably to a worker at work. The behaviour must happen more than once. It must also create a risk to health and safety. A single rude comment that is not repeated will not usually meet the definition.
The Commission’s guide on what bullying at work looks like gives examples. These include being aggressive or intimidating, using abusive or offensive language and mocking or humiliating someone. Teasing or playing jokes and giving someone too much or too little work can also be bullying, depending on the situation. Not all behaviour that upsets you at work is bullying, though.
Reasonable management action is not bullying
Managers are allowed to manage. The Fair Work Act says reasonable management action carried out in a reasonable manner is not bullying. The Commission gives examples such as starting a performance improvement plan or taking disciplinary action for misconduct. Telling a worker their performance is not satisfactory can also be reasonable.
The way the action is taken matters as much as the action itself. A performance meeting held fairly is one thing. The same meeting used to shout at or humiliate someone may be quite different. If unreasonable conduct keeps happening, it may still amount to bullying even when it is linked to a management process.
Who can apply for a stop bullying order
You must be a worker in a constitutionally covered business. Legal Aid NSW explains that workers include employees, contractors, labour hire workers, apprentices, trainees, work experience students and volunteers. You must still be working in or connected to the workplace. You must also still be bullied, or be at risk of being bullied.
Some workplaces fall outside the scheme. Legal Aid NSW lists sole traders and partnerships (unless operating in a Territory or Commonwealth place), most charities and state governments among those not covered. Australian Defence Force members cannot apply. State public servants may need to look at state laws and processes instead, which differ from state to state.
How the application process works
Applications are made on Form F72, either online or in writing. A lodgement fee applies, and it changes each year on 1 July. If paying would cause serious financial hardship, you can ask for the fee to be waived. The Commission will not process the application until the fee is paid or waived.
Once it is lodged, the Commission contacts you to talk about your case. A copy goes to your employer and to each person named as an alleged bully. Legal Aid NSW says the other side must respond within seven days. The matter may then go to conciliation, which only happens if both sides agree, or to a hearing.
Legal Aid NSW’s page on applying for an order to stop bullying notes there is no set time limit to apply. Because orders are preventative, it suggests applying while the bullying is still going on or soon after. Before you apply, it helps to gather a few things together:
- dates, times and a short description of each incident
- the names of the people involved and any witnesses
- copies of emails, texts or messages
- any complaints you made inside the workplace and the response
What the Commission can and cannot order
If the Commission finds you have been bullied and there is a risk it will continue, it can make orders it considers appropriate. Examples include requiring someone to stop certain behaviour or to follow the workplace bullying policy. It can also order support, training or a review of that policy. If there is no risk of further bullying, no order can be made.
The Commission cannot order anyone to pay you compensation for bullying. If you have suffered an injury or lost income, other legal options may apply. Our article on when to speak to employment lawyers covers the kinds of issues where early advice can help. If an order is breached, you can apply to the Federal Court or the Federal Circuit and Family Court within six years.
Other places to turn
A stop bullying order is not the only path. Work health and safety regulators in each state deal with risks to health and safety at work. Anti discrimination bodies may help if the treatment is linked to things like race, sex or disability. Unions and community legal centres can also offer guidance.
Some conduct crosses into criminal behaviour, such as assault, threats or stalking. In those cases the police may be the right place to go. If you give a statement, be accurate, as our article on giving false information to the police explains. Our article on refusing fingerprints or body samples also covers some of the rights people have when dealing with police.
Bullying at work often follows people home. If you are also going through a separation, the strain can build quickly. Our tips on positive parenting during a divorce may help you look after your children during a hard time. Looking after your own health and getting support early matters too.
Frequently asked questions
Can I apply if I have already left my job?
Generally no, because stop bullying orders aim to prevent future bullying. You must still be working in or connected to the workplace. If you have left, other options such as unfair dismissal or general protections claims may apply. Those claims have strict time limits, so get advice quickly.
Does one incident count as bullying?
Under the Fair Work Act, the unreasonable behaviour must be repeated. A single incident will not usually meet the definition on its own. It may still breach workplace policy or other laws. If it is serious, report it inside the workplace and keep a record.
Can I get money from a stop bullying application?
No, the Commission cannot order compensation through this process. The orders are aimed at stopping the bullying. If you have been injured, workers compensation or other claims may be possible. A lawyer can explain which options apply in your state.
Do I need a lawyer to apply?
You do not need a lawyer to lodge Form F72. Many people still find advice helpful, especially before a hearing. The Commission’s Workplace Advice Service offers free initial legal advice to eligible people. Community legal centres and unions may also help.
This article is general information about workplace bullying law in Australia and is not legal advice. Laws and processes differ by state and territory and can change. For advice about your own situation, please speak with a qualified lawyer.