Four Ways to Respond to a Workplace Bullying Complaint

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Table of Contents

• What Is Workplace Bullying?
• 1. Respond in Writing Using Form F73
• 2. Serve Form F73 to the Other Parties
• 3. Attend the Mediation, Conference or Hearing
• 4. Fulfil Your Obligations by the Commission
• Key Takeaways
• Frequently Asked Questions

The Fair Work Act makes workplace bullying unlawful. If one of your employees reasonably believes they have been bullied at work, they may file a Form F72 to stop bullying from the Fair Work Commission (“Commission”). You should respond and engage in the process if your employee has exercised this right. The Commission will not investigate the claims themselves – so if you do not respond, you can lose your opportunity to tell your side of the story. This article explains workplace bullying and the four steps involved in responding to a complaint.

What Is Workplace Bullying?

Workplace bullying is repeated and unreasonable behaviour that an individual or group in your workplace directs towards you or your employees. This repeated behaviour can risk your and your employee’s health and safety.

Workplace bullying can be direct or indirect behaviour. For example, direct workplace bullying can include:

• threatening to harm another employee;
• offensive or abusive language;
• an act of violence; and
• public humiliation.

On the other hand, indirect workplace bullying can include:

• deliberately excluding an employee from workplace activities;
• spreading malicious rumours about another employee; and
• deliberately withholding information or other resources from an employee.

Although the Fair Work Act defines workplace bullying as repeated behaviour, an isolated instance of bullying can quickly escalate to workplace bullying. Additionally, workplace bullying also includes:

• discrimination based on an employee’s race, sex, age, physical and mental ability, religion and sexual orientation, and
• sexual harassment, which includes making an unwelcome sexual advance or request for a sexual favour.

Ultimately, it is your responsibility as an employer to maintain a workplace free from bullying and harassment. For this reason, you must respond to a workplace bullying complaint accordingly. 

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1. Respond in Writing Using Form F73

After your employee has made an application, the Commission will send you a copy of it. They will also send a copy to anyone who has allegedly engaged in the behaviour and who the employee names in their application.

From the date that the Commission serves you with this, you have seven calendar days to respond. To answer the application, you must use Form F73 – “Response from an employer/principal to an application for an order to stop bullying”.

In your reply, you should set out your view of the events described by your employee and the facts as you understand them. You also have the opportunity to object to the application by setting out any relevant reasons why you think the Commission shouldn’t hear or progress the matter.

For example, you can object on the basis that the anti-bullying laws do not apply to the employee. Non-application usually occurs when the employee is not working at a “constitutionally-covered business”. These businesses include sole traders or a State government department.

You can lodge the form in various ways – including on the Commission’s website, by post or in person at any of the offices (which are in all capital cities).

2. Serve Form F73 to the Other Parties

As part of lodging your response, you will usually have to serve Form F73 (and any supporting documents) on the person (or people) who made the bullying complaint (known as the applicant), as well as any of their legal representatives.

You will also need to serve a copy on anyone named in the application as having bullied the applicant. This notice must also occur within seven calendar days from when the Commission notified you of the workplace bullying complaint.

The Commission has specific rules about giving the other side a copy of the required documents. Your options will usually include the following:

• fax;
• express or registered post; or
• leaving it with the person.

3. Attend the Mediation, Conference or Hearing

The circumstances of each application very much drives the process the Commission adopts. The Commission may mediate or go straight to the conference or hearing.

The mediation is voluntary, and an independent mediator will oversee the process and try to get you and your employee to work out the allegations on your own. If the mediation resolves the bullying dispute, the matter will end there. If the dispute remains unresolved, the issue will go to a hearing or a conference.

Any hearing or conference can lead to the following:

• the resolution of the bullying claim;
• the rejection of the application; or
• orders to stop the bullying.

The person who hears the application (known as the Commission member) can make orders that they consider appropriate to the case’s facts.

For example, the Commission could request you to:

• review your company’s bullying policy;
• stop the bullying behaviour; or
• provide extra support and training to your workers.

The Commission member is not a judge, and the Commission is not a court. A tribunal does not have all the powers a regular court has. The Commission cannot award compensation to the employee or pay a fine.

4. Fulfil Your Obligations by the Commission

If the application is listed for a hearing or a conference, and the Commission proves the bullying claim, and there is a risk that the bullying will go on, it can order you to stop the bullying.

You must comply with the terms of this order. If you do not, your employee may be able to start proceedings in the Federal Circuit Court or the Federal Court.

Unlike the Commission, the courts have the power to issue civil penalties. If the courts find that you have breached the terms of the Commission’s orders, they can impose a pecuniary penalty in addition to any order made by the Commission. 

Key Takeaways

If an employee applies to the Fair Work Commission for an order to stop bullying or sexual harassment in your workplace, you should respond within seven days using Form F73. You must then serve the form to all parties involved. Following this, you must attend the mediation, conference or hearing. Finally, you must fulfil your obligations concerning any orders the Commission makes. 

If you want to find out more about responding to an instance of workplace bullying, LegalVision’s experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions