Workplace legal steps you can take if you’re bullied
All Australian workers have the workplace legal right to protection from bullying and harassment. If you are experiencing this at work, one way you can respond is to seek an order to stop bullying with the Fair Work Commission. Is your manager a bully? is important reading.
In this article, we explain this critical workplace legal right and how you can apply for a stop bullying order. We also share two cases of employees who sought a stop bullying order with the Fair Work Commission, resulting in different outcomes. These two cases can help you understand what the Commission considers workplace bullying and what constitutes reasonable management action.
Understanding your workplace legal rights: What is workplace bullying?
To understand your workplace legal rights when it comes to bullying, let’s first explain what it is. The Fair Work Act states that workplace bullying is when someone (or a group of people) at your work repeatably act unreasonably toward you. This unreasonable behavior can constitute bullying when it creates a risk to your health and safety.
Examples of bullying can include aggressive behavior, exclusion from workplace events or teasing. It can also include unreasonable work demands or even being the victim of a practical joke. You can read more about stories of workplace bullying in our previous blog articles.
How reasonable management action factors into your workplace legal rights
There is often a fine line between what may be perceived as bullying or reasonable management. Often, when assessing a stop bullying order application, the Fair Work Commission must decide which of these two camps an allegation of bullying falls in.
Reasonable management action is defined by the Fair Work Act as an action that is “carried out in a reasonable way” and therefore is not considered bullying. This can include things like a manager initiating disciplinary measures against a worker. Also, directing them to conduct their work in a certain way or making decisions to help improve their performance. These sorts of reasonable management actions are not considered a violation of your workplace legal rights.
What is a stop bullying order?
If you feel that you have been a victim of bullying and that your workplace legal rights have been violated, you can make an order to stop bullying with the Fair Work Commission. The Fair Work Act allows a worker who “reasonably believes” that they have experienced workplace bullying to apply for an order.
Once you make an application to seek an order, you will take part in a voluntary conciliation with your employer. This will be arbitrated by an independent conciliator provided by the Fair Work Commission. If an agreement to resolve the issue is not reached in conciliation, the matter may be referred to a formal hearing with a member of the Commission.
At the end of a hearing, the Commission will either reject your application. Or it will make a stop bullying order. This can include ordering that a certain individual at your work cease a particular behavior. It can also include your employer providing support or training to your colleagues or reviewing its bullying policy. You can read more about stop bullying orders and the process involved in our detailed article.
Worker told to ‘shut up’ and followed around store granted stop bullying order
An example of a worker successfully applying for a stop bullying order is detailed in the Fair Work Commission case Tao (Selina) Qu v Monards Pty Ltd; Tak Wing Wong [2021]. Tao Qu started working for high-end jewelry retailer Mondards in its Surfers Paradise store in 2018. She believed that her workplace legal rights had been violated by regular instances of bullying. Ms. Qu therefore lodged an application with the Fair Work Commission in May 2021, seeking an order to stop bullying by her team leader, Tak Wing Wong.
Ms. Qu told the Commission that she and other staff used the “Slack” messaging app to communicate with each other on their personal phones. She said that Mr. Wong regularly questioned her about whether she was using her phone for personal or work purposes.
Legal rights violated
Ms. Qu also detailed several other instances of her workplace legal rights being violated due to the bullying from Mr. Wong. This included:
- Numerous suggestions that Ms Qu get a job with a competitor. Ms. Q said this made her feel “unwanted” and “very embarrassed.”
- After being told Mr. Wong would take over her responsibility for allocating staff time sheets, Ms Qu said he laughed at her and said “Bernard does not believe in you anymore.”
- Continuously following her around the store, creating an uncomfortable environment that led her to take sick leave.
- Putting his hand up to give Ms. Qu a ‘stop’ sign when she sought to discuss an issue with him.
- Ignoring Ms. Qu’s morning greetings on two occasions and later making a comment about her etiquette during a staff meeting.
- Sending Ms. Qu a message via Slack to get a client water instead of verbally asking.
- Sending a Slack group message telling Ms. Qu to tidy a counter after he had served a client. Even taking a photograph of the untidiness.
- After Ms. Qu took a late lunch break, Mr. Wong telling her “Shut up, you are not allowed to say a word in front of me.”
- The issuance of an unjustified performance improvement plan.
- An instruction requiring Ms. Qu to wrap watches for three hours.
- Manager argued his behavior was reasonable management action.
What constitutes reasonable management action
The Fair Work Commission acknowledged instances where Mr. Wong’s criticism of Ms. Qu regarding her mobile phone use was fair. However, after assessing all the allegations made by her, the Commission concluded that many instances of Mr. Wong’s behavior were a violation of her workplace legal rights. It deemed these instances did not constitute reasonable management action carried out in a reasonable manner.
A significant factor in the Fair Work Commission’s decision was the absence of a workplace bullying policy or complaint procedure at Monards. It also highlighted the lack of appropriate action taken by management in response to Ms. Qu’s repeated complaints. The Commissions noted that “Ms Qu has been let down by her employer.”
Fair Work rules workplace legal rights were breached
Ultimately, the Fair Work Commission was satisfied that Ms. Qu’s workplace legal rights had been violated by the bullying from Mr. Wong. It deemed that there was a risk of the bullying continuing if an order was not made. The Commission therefore issued a stop bullying order to prevent Mr. Wong from continuing to bully Ms. Qu at work.
Lawyer’s workplace bullying claim dismissed by Fair Work Commission
An example of a worker unsuccessfully applying for a stop bullying order is the unfair dismissal case Meagher [2024]. Hugo Meagher began working for the federal Department of Employment and Workplace Relations as a graduate lawyer in February 2024. In December of that year, he lodged an application with the Fair Work Commission seeking an order to stop bullying. He sought the order against three female colleagues – a Supervisor, Manager and Director.
Mr. Meagher detailed several instances which he believed constituted bullying. The first allegation involved the Department imposing inflexible work schedules and failing to provide adequate breaks during training. Mr. Meagher claimed that his request for a break during a two-hour training session had been denied, despite saying he was fatigued and hungry. Me. Meagher further said that he had been reprimanded for lateness to two meetings.
He argued this breached the enterprise agreement as he believed his only obligation was to attend within bandwidth hours. He cited an undiagnosed sleep disorder that he had told the Department about and which required work flexibility.
Felt his workplace legal rights were violated by ‘menacing’ email
Central to this first allegation was an email Mr. Meagher received from his Supervisor in February 2024. The email outlined that he had been late for meetings and that he had difficulty managing his calendar. The Supervisor also said that she had observed him “online shopping or conducting research (for example into real estate)” during meetings.
The Supervisor also claimed that Mr. Meagher had used his work email for personal disputes and raised a concern about him being “fatigued” in meetings and at work generally. Mr. Meagher described this email’s tone as “menacing and out of context.” He claimed that it aimed to “threaten or embarrass” him.
Mr. Meagher also said that he had not consented to the Department surveilling his Microsoft Teams activity. He argued that the Department was at serious risk of violating the Public Service Act.
Worker accused of undermining supervisor. Who bullies who?
The second allegation involved interactions after Mr. Meagher emailed a First Assistant Secretary directly regarding training deadlines and volunteering for a networking event. He claimed his Supervisor accused him of undermining her and breaching the APS Code of Conduct by having these communications.
Mr. Meagher reported this interaction as an “incident report” to the Director. He alleged that in a subsequent meeting involving himself, the Supervisor and the Director, the Supervisor accused him of misconduct and harassment. He also asserted he was told not to contact HR or senior management directly.
Received ‘condescending and stern’ feedback
A third allegation arose after Mr. Meagher took personal leave in March 2024, citing discomfort working with his original supervisor. A new supervisor, the Manager, was assigned. Mr. Meagher submitted research work on 17 April 2024 and received feedback he described as “condescending and stern.”
The next day, the Manager emailed Mr. Meagher expressing concern that he might not meet the hour or task requirements for his Practical Legal Training placement. She noted that no tasks were completed and suggested a meeting. Mr. Meagher responded that the email was “vague and superficial.” He suggested supervisors should observe he implemented instructions rather than calling meetings, which he found “exasperating and stressful”.
The employee felt there was a “pattern of behavior” that aimed to “victimize” him and “degrade [his] work ethic and competency.” He alleged he was threatened with failing his training.
Fair Work rejects claim. Is your manager a bully was not proven
The Fair Work Commission found there was no evidence of bullying behavior against Mr. Meagher. Regarding the first allegation and the email from the Supervisor, the Commission found there was nothing in the email that could be considered “menacing, threatening or in any way inappropriate”. It said that the email was a “reasonable response” to Mr. Meagher’s request for issues to be outlined before their meeting. Expecting punctuality and focus at work was considered reasonable.
Assessing the second allegation, the Commission rejected Mr. Meagher’s claim that the Director accused him of breaching the APS Code of Conduct or taking part in misconduct. It concluded the events could not “objectively be construed as bullying.”
Concerning the third allegation, the Commission found the Manager’s email raising concerns about progress was “entirely appropriate.” It also said that the guidance provided to Mr. Meagher was “more than adequate.” The Commission was satisfied Mr. Meagher was not threatened with failure, but rather that reasonable concerns about meeting requirements were raised proactively.
Worker was ‘exceptionally difficult to deal with’
The Fair Work Commission made several critical observations about Mr. Meagher’s conduct throughout the proceedings. The FWC stated that he was “exceptionally difficult” to deal with. It was noted that he failed to follow basic instructions for preparing a witness statement despite his legal background. It was also highlighted that Mr. Meagher had submitted a Statement of Claim instead which contained “inaccurate and misleading” details.
During the hearing, Mr. Meagher was found to be “belligerent, rude, obstructive.” It was noted that he refused reasonable concessions and was “highly evasive” during cross examination. The Commission cited several instances of unprofessional and inappropriate remarks Mr. Meagher made about the Supervisor, Manager and Director. It concluded that he “was not a credible witness” and preferred the evidence of the Department’s witnesses where factual conflicts arose.
Workplace legal rights were not violated
Ultimately, the Fair Work Commission concluded that none of the actions complained of constituted bullying under the Fair Work Act. It said that all “all action taken” by the three female superiors was “reasonable management action.” The matters raised with Mr. Meagher concerning lateness, performance and conduct were “all matters that ought to have been raised with him.” The Commission concluded that there was “simply no bullying behavior at all.”
It added that Mr. Meagher’s conduct in the workplace was “unacceptable and ought to have been dealt with.” The FWC also noted that as Mr. Meagher had moved to a different team before the hearing, “there is no risk” of ongoing bullying. His application for a stop bullying order was therefore dismissed.
Conclusion to: Is your manager a bully
Our team at a Whole New Approach can help you take action against your employer. We are not lawyers. AWNA are the nation’s leading workplace advisors, commentators and influencers. Whether you have faced bullying, workplace harassment, discrimination or any other workplace legal rights violation, we can provide the expert guidance you need.
Speak to us today on 1800 333 666 to explain your situation, and we can provide advice on your next steps. Toxic workplace culture must be stamped out. Our team has helped over 16,000 Australian workers take action through the Fair Work Commission. We’re feared by employers for holding them to account and standing up for worker rights for the last 30 years.
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