Employment Law Update: The Cost of Workplace Bullying

In a cautionary tale about the possible consequences of workplace bullying claims, an ex-government employee reportedly received a settlement over $1 million in October following bullying by her supervisors at a NSW government agency. This is not the first time a workplace bullying matter was resolved at such a high price. In Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728, the Victorian Supreme Court awarded Ms Mathews $1,360,027 in damages after her former employer admitted had been negligent following abuse, bullying and sexual harassment that its employees and sub-contractors experienced. 

Such cases provide a stark reminder that dealing with office bullying is more than just receiving a slap on the wrist. This article explores the fundamentals of workplace bullying, and how the Fair Work Commissioner enforces anti-bullying laws.

What is Workplace Bullying?

Section 789FD of the Fair Work Act 2009 (Cth) (“the Act”) defines bully as repeated and unreasonable behaviour at the workplace, where such behaviour poses a health and safety risk. Bullying can target a single employee or a group of employees. Yelling, ostracism, emotional abuse and unreasonable work expectations are all examples of the types of behaviour that can be bullying under the Act.

An employee can apply to and ask the Commission to make an order for an individual to stop bullying. However, remember that not all workplaces fall within the scope of section 789FD of the Act. For example, members of the Defence Force and employees of sole traders and state government departments cannot make a claim (although can find recourse under other workplace laws). 

How Do You Prove Workplace Bullying Before the Commission?

There must be an ongoing risk of bullying. For example, if the employee has been dismissed, and therefore no longer works with the individual/s in question, it is unlikely that the Commission will find that there is a “continued” risk of bullying. The behaviour must also be repeated and while there is no “minimum number of incidents”, it must have happened on more than one occasion.

Importantly, there must be a connection between the bullying and the risk that is said to have occurred. Finally, the actions of the alleged office bully must not be ‘reasonable management action’ that an employer has carried out in a reasonable way (such as a disciplinary action for employee misconduct). When deciding whether workplace bullying has occurred, the Commission has various powers under sections 590 and 591 of the Act, including the power to compel someone to attend the Commission and request sworn evidence.

Penalties for Workplace Bullying Under the Act

However, the Commission cannot: 

• Award compensation to an employee; 
• Impose a fine on an employer; or 
• Request an employee be re-hired. 

It can make a variety of other orders (as appropriate in the circumstances of each case), including: 

• Making an order for an individual or company to stop bullying an employee; or 
• An order for an employer to provide additional training to its employees. 

If an employer doesn’t comply with the Commission’s order to stop bullying, an employee can turn to the courts within six years of the breach. Courts can issue penalties up to $10,800 (against individuals) or up to $54,000 (against companies) for failure to comply with the Commission’s orders.

Employer’s Duty of Care

An employer has a positive obligation to address bullying claims which arise in a workplace as part of their duty of care towards employees. Where an employer breaches this duty, an employee can sue for personal damages, separate to the process for anti-bullying applications under the Act. 

Courts can award a broad range of personal damages in situations of workplace bullying, such as: 

• General damages for proven psychiatric injury; and 
• Damages for unpaid wages and pain and suffering. 

The court in Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 awarded the employee $237, 770 after being bullied for 11 working days, which included her manager isolating her and speaking to her in an “aggressive and nasty” way. The court found that the employer had breached its duty of care. 

The Victorian Supreme Court in Swan v Monash Law Book Co-operative [2013] VSC 326 awarded Ms Swan $300,000 for pain and suffering and loss of enjoyment of life following bullying, harassment and intimidating conduct. The Court found the employer had breached its duty to take reasonable care for Ms Swan’s mental health by failing to undertake the following:

• Clearly setting out its expectations for workplace conduct (such as through employment agreements or workplace policies);
• Training employees to deal with bullying complaints;
• Directly investigating the bullying claims.

Key Takeaways

As a practical matter, an employer should investigate and address every instance of alleged bullying. Workplace bullying if left unresolved can have significant financial consequences for employers. If you are an employee who has been bullied at work, or an employer facing a bullying complaint, get in touch with our experienced employment lawyers on 1300 544 755.