What options are available to an employee experiencing bullying?
Although many employees experience or witness bullying in the workplace, the avenues and options for employees are not well known. On National Day of Action against Bullying and Violence, we have detailed the options that employees have available to them in circumstances of workplace bullying.
Bullying in the workplace involves an employee (or employees) subjecting a colleague to repeated unreasonable behaviour, which has the risk to cause damage to the recipient’s health and safety. While this definition is broad, people will often view the same situation in different ways and, as a result, may reach different conclusions about whether bullying has occurred. Unreasonable behaviour can include intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.
When a worker believes they are experiencing bullying, the most straightforward avenue is to address the issue directly with the bully. The downside to this option is that it assumes the bully will be reasonable and that the parties are on equal footing, which is rarely the case.
The first point of escalation for an employee who wants to try and resolve the matter internally is a manager or human resources. Most employers have policies and procedures which prohibit bullying and provide a process for investigation and redress. It may be that escalating the matter by seeking intervention from an employer can resolve the issue.
If there is no resolution, or if the employee feels the internal option is not going to be successful (for example, because the alleged bully is their manager or an owner of a smaller business), there are several external avenues an employee can pursue.
In Victoria, WorkSafe can investigate and, in serious cases, prosecute cases of bullying. While WorkSafe serves as a general deterrent to employers, it is not an avenue that can result in compensation for the employee. Although employees can make complaints to WorkSafe, they cannot force any action, so an investigation is not guaranteed. Ultimately WorkSafe decides if it will investigate or take action concerning the complaint.
Fair Work Commission
Another option for a more direct claim would be to seek an Order to prevent bullying through the Fair Work Commission. This jurisdiction provides the most straightforward pathway to determining whether an employee is being bullied. The process involves filing an application in the Fair Work Commission and attending a conference with your employer to see if the matter can be resolved by agreement.
Unfortunately, complaints to the Fair Work Commission again do not result in compensation for the employee. The focus is on preventing further bullying in the future. Because of this, it is a quirk of the system that claims can only be brought by current employees, meaning many employees are prevented from making a claim because they have been dismissed or only consider making a claim after they resign.
The final option for an employee who believes they have experienced bullying is to lodge a claim for workers compensation. Workers compensation claims focus on an injury more than the conduct itself, so the employee would need to have an injury and likely be unfit for work. These claims are for compensation due to an injury, but if the injury was caused by or a result of bullying, that would be considered a factor of the claim.
Seeking workers compensation is the only claim which can result in receiving compensation in the context of bullying, however it is not actually a direct claim alleging bullying.
In conclusion, while there are plenty of options for employees who believe they have been bullied, each option has its own benefits and limitations. There is no single direct claim for bullying in which an employee can seek compensation.
Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances