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Workplace bullying - why your gossip could land you in hot water

A look into what constitutes workplace bullying - gossip, harassment, discrimination, exclusion, teasing, initiation ceremonies - where is the line?

Just as sexual harassment and discrimination is unlawful in the workplace, we’re all aware (or at least should be) that workplace bullying is similarly not acceptable.

The Commonwealth Fair Work Act 2009 (section789FD) sets out the elements of what conduct constitutes workplace bullying, namely:

  • An individual (or a group of individuals) repeatedly behaving unreasonably towards a worker or a group of workers; and
  • That behaviour creating a risk to health and safety.

So what constitutes “unreasonable behaviour” that amounts to bullying? Some recent examples include:

  • 20 phone calls in one night to a worker;
  • Sending menacing text messages;
  • Repeatedly spreading gossip (i.e. misinformation or ill will) about a worker in the workplace;
  • Telling a worker to “get fu*&%ed” or similar vulgar abuse;
  • Exclusion from work related events;
  • Teasing, practical jokes, or initiation ceremonies.

Bullying, however, does not include “reasonable management action carried out in a reasonable manner”. For example, undertaking a performance management process or undertaking disciplinary action for misconduct does not constitute bullying so long as it is conducted in a reasonable manner.

The Fair Work Commission can deal with complaints of workplace bullying per se, as well as dealing with the issue of bullying in the context of unfair dismissal claims.

Once a complaint of bullying gets to the Fair Work Commission, it goes through a process of investigation and information gathering, mediation, and ultimately hearing. The Fair Work Commission can make orders preventing bullying taking place, requesting regular monitoring of workplace behaviour, provision of training and review of an employer’s workplace bullying policy. Orders can be made against not only the co-worker(s) but also the employer, and indeed visitors to the workplace.

If you are an employer, you need to ensure your policies, procedures and training are up to date and effective otherwise you run the risk of falling foul of not only the Fair Work Commission but also WorkSafe Victoria.

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About the author

George Spiliotis
Managing Principal

Practicing for over 30 years, George affords clients the breadth and depth of his knowledge in commercial litigation, dispute resolution and employment law. George is reputed for his pragmatic approach to commercial litigation and dispute resolution. He always has his client’s interests at heart and works diligently to achieve their optimal commercial and legal outcome without litigation when...

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