When does workplace bullying meet the legal threshold?

Many employees are surprised to learn that behaviour can be rude, hostile or even unreasonable without meeting the legal definition of workplace bullying.

A recent decision of the Fair Work Commission highlights this distinction and serves as an important reminder for employees considering a stop bullying application.

The case involved two workers who sought stop bullying orders against a representative of a body corporate, alleging repeated aggressive and confrontational conduct, including hostile emails, unrealistic demands and undermining behaviour.

Commissioner Riordan accepted that some of the conduct was confronting. In fact, he described one of the demands made by the representative as “ridiculous” and “bordering on delusional”. Despite these findings, both applications were dismissed.

Under the Fair Work Act, the Fair Work Commission can only make a stop bullying order if it is satisfied that:

• the worker has been bullied at work, and
• there is a risk that the worker will continue to be bullied at work

Importantly, workplace bullying is not established simply because conduct is unpleasant. The behaviour must be repeated, unreasonable, and create a risk to the employee’s health and safety.

In this case, one application failed because there was no longer any ongoing interaction between the parties. As a result, the Commission was not satisfied that there was a future risk of bullying that required intervention. The stop bullying jurisdiction is preventative rather than punitive, meaning it is designed to stop future bullying rather than address past conduct alone.

The second application was dismissed because, although the communications could be characterised as combative and demanding, Commissioner Riordan was not satisfied that the conduct created the required risk to health and safety under the legislation.

This decision demonstrates that behaviour that feels unfair is not always legally considered workplace bullying. Successful claims generally require evidence of repeated unreasonable behaviour, a clear health and safety risk, and an ongoing likelihood that the conduct will continue.

That does not mean employees should tolerate inappropriate conduct. Hostile communication, unreasonable demands and workplace conflict can still warrant internal complaints to a manager or human resources, workplace health and safety action, or legal advice.

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