What is workplace bullying?
Whether your workers fall within the State or Federal System they are able to apply to either the Fair Work Commission (FWC) or the Western Australian Industrial Relations Commission (WAIRC) for an order to stop bullying.
The Commission will consider whether the conduct that has occurred falls within the definition of bullying, which is repeated unreasonable behaviour to a worker or a group of workers that creates a risk to health and safety.
Examples of what may amount to bullying behaviour if repeated includes:
- being aggressive or intimidating;
- unwarranted blame or criticism of the worker;
- teasing, playing jokes, insulting or spreading lies about the worker;
- blaming the worker for something without any evidence;
- intentional exclusion or isolation of the worker (eg not inviting them to events, meetings, lunch or including them in conversation);
- yelling or harsh, inappropriate language directed at the worker;
- making comments that embarrass, humiliate or degrade the worker in front of others;
- unreasonable work demands, such as setting unrealistic deadlines for the worker; and
- sabotaging or taking credit for the worker’s work.
That said a manager is entitled to make decisions about poor performance, take disciplinary action, and/or direct and control the way work is carried out, provided it is reasonable management action that is carried out in a reasonable way that is not bullying.
In Dr Ngoc Le [2020] FWC 4687, the Fair Work Commission considered an application to stop bullying by Dr Le. One of the aspects of the case was Dr Le’s difference of medical opinion with her line manager over the admission of certain patients to a hospital ward. The Commission did not view the difference of medical opinion as bullying and it was not unreasonable for the medical line manager to prefer the opinion of another doctor as to the suitability of a patient transfer.
Potential outcomes
A worker does not need to make any complaint of bullying or bring it to the attention of the organisation before applying to the FWC or the WAIRC for an order to stop bullying. Although such issues (eg failure to take any formal or informal steps to resolve matters) will be considered by the Commission prior to making a stop bullying order.
The Commission cannot order that compensation be paid but has a broad discretion to make any other order to deal with and/or prevent the worker from being bullied. Some examples of such orders may include that:
- the conduct cease, or that workers are separated and/or monitored;
- the practice reviews or establishes of policies for the prevention of bullying;
- the practice adheres to any relevant policies or procedures;
- training be provided to workers; or
- the practice conducts an investigation.
Work Health and Safety Laws
As a practice you should be aware of your obligations under the Work Health and Safety Act.
Workplace bullying is a risk to health and safety and may affect the mental and physical health of workers. As a person conducting a business or undertaking (PCBU) you have a duty under the Work Health and Safety Act to eliminate risks to the health and safety of workers and other persons so far as is reasonably practicable. This means you must do all that you reasonably can to manage the risk of bullying at your workplace.
Bullying is a psychosocial hazard that can cause psychological harm to a person’s mental health. A PCBU must manage the risks of psychosocial hazards in the workplace. This may include undertaking risk assessments and implementing control measures. Everyone in the workplace has a health and safety duty and can help to prevent workplace bullying.
If you do not take steps to manage the risk of workplace bullying and psychosocial hazards in the workplace then it can result in a breach of the Work Health and Safety Act, exposing the practice to the risk of significant penalties.
What can you do to minimise the risk?
Bullying can have significant implications for medical, dental or healthcare practices, including financial (such as loss of morale and productivity, sick/stress leave, staff turnover costs, costs of defending claims in the Commission, risk of prosecution under the applicable Work Health and Safety Legislation and significant penalties), and reputational loss.
There are a number of measures practices can take to help minimise the risk. This includes:
- having clear and up-to-date workplace bullying and grievance resolution policies and procedures in operation which are applied consistently and reviewed;
- providing training to all staff in relation to appropriate workplace conduct, harassment and bullying, as well as in relation to the practice’s bullying policies and procedures;
- taking any complaints or reports of bullying seriously and responding and dealing with the complaint promptly;
- providing training to managers on how to handle underperformance and disciplinary issues.
For further information on preventing and responding to any alleged complaints of workplace bullying, harassment, discrimination and WHS matters, please contact us.
The content of this article is intended to provide a general overview and guide to the subject matter and should not be relied on as legal advice. Specialist advice should always be sought about your specific circumstances.
