Introduction
Workplace bullying is a significant issue that affects both employees and employers. Understanding the workplace bullying legal definition is essential for recognising misconduct and addressing it effectively. A previous publication on our website provided a brief overview of what may constitute workplace bullying under Australian legislation and explored possible legal remedies. This article provides a more in-depth analysis of the workplace bullying legal definition, its implications, and strategies for prevention.
Workplace Bullying Legal Definition Under Australian Law
The Fair Work Act 2009 (Cth) defines workplace bullying under s 789FD(1) as follows:
A worker is bullied at work if:
• While at work in a constitutionally covered business:
– An individual; or
– A group of individuals;
• Repeatedly behaves unreasonably towards the worker or a group of workers of which the worker is a member; and
• That behaviour creates a risk to health and safety.
Workplace bullying can manifest in various forms, ranging from subtle and insidious behaviour to overt misconduct. The legal definition provides a structured framework, but each workplace bullying incident must be assessed individually, considering workplace culture, hierarchy, and the personal impact on affected individuals.
Workplace Bullying Legal Definition and the Legal Framework
Workplace bullying can take multiple forms, including discrimination, harassment, or general bullying. Employers have a legal obligation to prevent such misconduct under various federal laws, including protections against discrimination based on race, sex, age, disability, and sexual orientation.
Employer’s Duty of Care
Employers are responsible for fostering a safe and respectful work environment. While the primary offender is usually held accountable, employers may also be liable for failing to uphold their duty of care.
Key Legislative Provisions on Workplace Bullying Legal Definition
- Work Health and Safety Act 2011 (Cth) – Requires employers to maintain a safe working environment.
- Fair Work Act 2009 (Cth) – Enables employees to lodge workplace bullying complaints with the Fair Work Commission.
- Australian Human Rights Commission (AHRC) – Investigates complaints related to discrimination and workplace bullying.
- Workers Compensation Act 1987 (NSW) – Provides compensation for psychological harm due to workplace bullying.
Key Case Studies on Workplace Bullying Legal Definition
Lal v Australian Administration Services Pty Ltd (2015)
This case involved a negligence claim for psychological injury sustained from alleged workplace bullying over five years. The court ruled that the reported instances did not meet the legal threshold for bullying, underscoring the importance of clearly defining and substantiating bullying claims in legal proceedings.
Ms Anne Pilbrow [2020]
Ms Pilbrow, a nurse, filed a claim alleging that her manager’s actions constituted workplace bullying. The Fair Work Commission ruled that reasonable management actions must have ‘evident and intelligible justification.’ The case highlighted the role of HR in preventing workplace bullying.
Preventive Strategies
For Employers:
- Establish clear workplace bullying policies.
- Provide training on respectful workplace behaviour.
- Encourage open communication and reporting mechanisms.
- Take immediate corrective action when necessary.
For Employees:
- Document all instances of workplace bullying.
- Seek support from HR, supervisors, or external legal services.
- Understand your rights and available legal protections.
- Report concerns early to prevent escalation.
Conclusion
Workplace bullying is a complex and multifaceted issue with serious consequences for employees and employers alike. Employers must ensure a safe and respectful workplace, while employees should be aware of their rights and avenues for recourse. Understanding what constitutes workplace bullying and how to seek appropriate legal remedies is crucial for maintaining a productive work environment.
This article is for informational purposes only and does not constitute legal advice. If you require specific legal assistance, please contact our experienced solicitors at Jake McKinley on 02 9232 8033 or here to discuss your case.
