Q&A: Bullying for WA workers

Most people have an understanding of what “bullying” is in the ordinary sense of the word. If you are being treated badly by other people in the workplace, it’s natural to feel that you are being bullied.

However, there is a particular definition of bullying under workplace laws. To successfully make a legal claim, you need to be able to show that the way you have been treated meets this definition. Most of this Q&A deals with this particular legal definition of workplace bullying and is focused on making a claim. However, there may be some information that is helpful to you, even if you think the way you are being treated doesn’t meet the definition of workplace bullying.

Definition

Workplace bullying occurs when:

• an individual (or group) repeatedly behaves unreasonably towards a worker (or group of workers) at work; and
• the behavior creates a risk to health and safety.

Repeated behaviour

To meet this definition, bullying must have happened more than once. The workplace laws on bullying are mainly concerned with behaviour that is ongoing and persistent. A single instance of poor treatment won’t be considered bullying under the law.

Risk to health and safety

There only needs to be a risk, you don’t need to show that your physical or mental health has already been damaged, or even that you are at immediate risk. You need to show that the type of behaviour taken against you is likely to be a risk to physical or mental health if it continues.

If you are likely to develop anxiety or other mental health issues because of the way you are being treated, then there’s a good chance the bullying is a risk to health and safety.

Unreasonable behaviour

Reasonable management action that is carried out in a reasonable manner is not workplace bullying. An ordinary performance appraisal or an appropriate investigation into alleged misconduct is likely to be reasonable management activity and not considered bullying.

If you have concerns about a performance appraisal or an investigation or another internal process, you may wish to read our publication Q&A: Meetings and other internal processes for WA employees

Examples of workplace bullying

While every situation is unique, here are some examples of actions that have been found to be workplace bullying in the past:

• multiple incidents of verbal or physical abuse;
• demeaning or intimidating behaviour;
• isolating workers;
• being given meaningless tasks;
• being overloaded with work;
• making blatantly untrue allegations against a worker;
• making inappropriate remarks about a worker;
• conducting an investigation in a grossly unfair manner (e.g no chance to tell your side of the story).

No, the law only covers repeated behaviour and one incident or event of bullying is not enough to be able to make a claim. However, you don’t need to show that the same type of bullying is repeated. You just need to show a pattern of behaviour, even if the bullying actions are quite different in nature.

This does not mean that a single incident of bullying behaviour should be ignored. You should still report it to your employer and record the incident in a workplace bullying diary so that you can refer to it in case you experience bullying again.

Single instances of bullying may also be in breach of other laws, including workplace safety and health laws, anti-discrimination protections and sexual harassment protections.

There are a number of steps that you can take if you feel that you are being bullied in the workplace. If your employer has a workplace bullying policy or process you should use that process when taking the steps set out below.

It may be helpful to take all the steps we set out below, rather than proceeding immediately to a claim. Even if you think some of these steps won’t help, it’s important to try these avenues first and to keep a record of them. For some legal claims, it is necessary or helpful to show that you have taken internal steps before making a claim.

Keep a diary

Firstly, you should keep a diary of all incidents of workplace bullying. This should include detailed written notes on when the bullying occurred, who was involved, what happened and, if things were said, what exactly was said. Keeping a written record can help to show that the bullying behaviour took place, and that it was repeated. It’s best to do this close to the time that the bullying occurs, but it’s still helpful to make a record of past events based on your memory.

Ask for the bullying to stop

If you are comfortable, you should tell the person who is bullying you that their actions are inappropriate, and that they must stop. This is an important step because, sometimes, the bully may not realise that their behaviour is offensive. If the bully is a co-worker (as opposed to your boss) you should also notify your boss of the bullying behaviour, and then you can wait to see if the boss takes steps to address the problem. You should make your own written records of these conversations. If you have these discussions in written form, like an email, you should make sure you save those emails.

Make a formal complaint to your employer

If the bullying continues after this, or if the employer does not take any steps in response to your complaint, you should formally notify the employer about the bullying in writing. If there is a particular complaint form or process set out in a bullying policy, you should follow this process as much as you can.

Your written records will help to show specific incidents that have happened, rather than just saying you’ve been bullied. In your written complaint you should also make specific references to efforts you have made to resolve the bullying, including verbal conversations you had with the bully directly to try and resolve the problem. By making a formal written complaint to your employer this provides proof of your attempts to resolve the dispute, which can be important later if you make a bullying complaint with a regulator.

You should ensure you keep copies of all correspondence regarding your bullying. These should be dated and include both communications you send and receive. This will be useful if the bullying cannot be resolved through discussion to give other parties a summary of what happened and show your efforts to resolve the issues.

Make a legal claim

You may wish to seek advice on your legal options at this point. You could contact your union for assistance or you can contact us to make a request for legal advice here:  https://circlegreen.org.au/get-help/

If you believe that you have been bullied at work, and you are not able to resolve the issue with an internal complaint, you can consider making a complaint to a regulator for assistance in resolving the issue.

If you feel ready to lodge a complaint with a regulator, you may wish to look at the appropriate claim guide.

If you are a national system employee, you lodge a complaint with the Fair Work Commission (FWC) and you can see our Claim Guide: Stop workplace bullying or sexual harassment in the FWC (for national system employees).

If you are a state system employee, you lodge a complaint with the Western Australian Industrial Relations Commission (WAIRC) and you can see our Claim Guide: Stop workplace bullying or sexual harassment in the WAIRC (for state system employees).

If you aren’t sure whether you are a national system or state system employee, you should contact Wageline, or read our publication: Q&A: State or national system for WA employees.

There is no specific timeframe within which you must make a bullying complaint. However, there must be a risk that the bullying will continue. If a large amount of time has passed since the bullying behaviour occurred, it is more likely that the FWC will decide there is no risk of the bullying continuing, and as a result your application might be unsuccessful. If you are no longer working for the employer it is also likely that your application won’t proceed

Most bullying complaints are resolved during the conciliation process. However, if the claim proceeds to a final hearing, then orders may be issued.

Stop-bullying orders

The primary remedy for a stop bullying application is orders made to prevent the bullying from continuing. A number of different type of orders can be made. Generally, these orders will involve your employer or someone who has been bullying you being ordered to do something or to stop doing something so that the bullying stops. It could also include review of and compliance with workplace bullying policies, regulating monitoring of an individual’s behaviour by the employer or additional support and training for workers.

Orders cannot be made for compensation (money) for a bullying application. This type of claim is focused on stopping the bullying occurring and the remedies reflect this, rather than any compensation for treatment which you have suffered.

Whilst a stop bullying application with the FWC or the WAIRC are the main avenues to address bullying at work, there are some other claims that can apply.

There are also other claims that may be relevant depending upon the circumstances of the bullying.

If the bullying is discriminatory in nature, a discrimination claim may be available. For more information, see our publication:  Q&A: Discrimination against WA workers.

If you experienced one instance of bullying which was of a sexual nature this may be sexual harassment. For more information, please see our publication: Q&A: Sexual harassment against WA workers.

If you have experienced physical or sexual assault, then you should contact the police as soon as possible.

WorkSafe WA

Bullying has a negative effect on the health and safety of employees and others at a workplace. This presents a hazard in the workplace and is unlawful under the Work Health and Safety Act 2020 (WA) (WHS Act). Under the WHS Act, an employer has a duty to provide and maintain a working environment in which employees are not exposed to hazards. Employees also have obligations under the WHS Act to work in a safe manner and not to endanger themselves or others.

If you feel that the bullying occurring at work presents a risk to your health and safety or that of others then you can make a complaint to WorkSafe WA.

WorkCover WA

You should note that if you do feel that the bullying treatment has impacted your physical or mental health detrimentally you might want to think about making an application to WorkCover for workers’ compensation. Workers’ compensation protects injured workers by providing for loss of earning capacity, payment of medical expenses and vocational rehabilitation to assist employees to remain in or return to work. As such, this can result in a form of compensation. Anxiety or stress as a result of workplace bullying can sometimes be considered an illness or injury for the purposes of workers’ compensation claims.

Circle Green does not advise on workers’ compensation. You should contact WorkCover WA.

Under the law, employees are protected from being targeted for making a complaint or inquiry about their employment. This means that if you made a complaint about bullying in the workplace, whether formally, informally, with your employer or with a regulator, you are protected against your employer taking negative action in response to your complaint.

For more information on these type of claims, see our publication Q&A: Protected complaints for WA workers.

Be aware that if you have been dismissed there are time limitations as short as 21 days from the date your dismissal took effect.

Generally, you can’t make a stop bullying claim to the Fair Work Commission or Western Australian Industrial Relations Commission if your employment has ended. This is because there is no risk that the bullying will continue, so there is no order for the commission to make.

However, in some situations where you were forced to resign, you can make a dismissal claim such as unfair dismissal.

In most circumstances, you can’t make a dismissal claim after resigning.  This is because you chose to leave employment and have not been “dismissed” by your employer.

However, sometimes your employer’s actions might leave you with no other choice but to resign. This situation can happen in severe cases of bullying, particularly where an employer has been notified of the bullying but has not responded properly.

In these situations, a court or commission may say that a forced resignation is equivalent to a dismissal, which means that you will be eligible to make a dismissal claim. A forced resignation is sometimes called a ‘constructive dismissal’.

You should be aware that constructive dismissal is a very difficult argument to successfully make. If you resign and do not succeed in arguing that you were constructively dismissed, you may have limited options as to what you can do.

We strongly suggest that, if possible, you seek legal advice before resigning because of bullying behaviour.

For more information on constructive dismissal see our publication: Q&A: Dismissal for WA employees.

Have you been dismissed or resigned?

If you have been dismissed or forced to resign, it’s very important to remember that time limits for dismissal claims can be as short as 21 days from the date the dismissal took effect, and it’s very hard to get a claim accepted outside of the time limit

Q&A: State or national for WA employees  

Q&A: Workplace discrimination for WA workers

Q&A: Sexual harassment against WA workers

Q&A: Dismissal for WA employees

Q&A: Meetings and other internal processes for WA employees

Claim guide: General protections for national system employees

Claim Guide: Stop workplace bullying or sexual harassment in the WAIRC (for state system employees)

Claim Guide: Stop workplace bullying or sexual harassment in the FWC (for national system employees)

Fair Work Commission

Western Australian Industrial Relations Commission

WorkSafe

WorkCover WA

Australian Human Rights Commission

Equal Opportunity Commission