Under the Fair Work Act 2009 (Cth) (the FW ACT), Workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers of which the worker is a member, at work and that behavior creates a risk to health and safety. Depending on the circumstances, employees’ may be eligible to lodge an application for an order to stop Workplace Bullying (Form F72), a General Protections Application not involving dismissal (Form F8C)or a General Protections Application involving dismissal (Form F8). In order to determine which application is best for your unique circumstances, please give us a call on 1800 333 666 for free advice, guidance and possible representation for these disputes.
Am I being bullied at work?
Aforementioned, workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety.
In Amie Mac v Bank of Queensland Limited and Others, the Fair Work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were “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”. In regards to establishing a risk to health and safety for the test of workplace bullying, proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by bullying behaviour is demonstrated. Thus, the bullying behaviour must create the risk to health and safety through a casual link.
Working from Home
Due to the COVID-19 global pandemic, many employees have been required to work from home and thus this raises many issues in regards to whether an employer’s actions will constitute workplace bullying. In order to constitute workplace bullying, the bullying conduct must have occured while the worker is “at work”. Although “at work” is not defined clearly in the legislation, it has been held that the definition includes work activities wherever they may occur and is not limited to the confines of a physical workplace. Despite not being physically present at work, it has been held in Bowker and Others v DP World Melbourne Limited T/A DP World and Others, that bullying through social media platforms can constitute workplace bullying, despite the conduct not occurring “at work”.
Employer’s have been forced to utilize social media platforms, such as Zoom, in order to conduct interviews, meetings and general communication with their employees. Just because an employee is working from home, does not mean an employer can intimidate, victimize, single-out, yell or belittle their employees. Similarly, just because employees are working from home, does not mean that employer’s can have unreasonable expectations in regards to workload or give unreasonable directions. The employees should still be required to complete the amount of work they would have had they physically gone into work, they should still be entitled to the same breaks and they should only be contacted during work hours. Working from home does not mean an employer can abuse the employee’s freedom by making them work until late at night or contacting them constantly in order to make sure they are being productive. In return, employees should not be abusing this freedom by not meeting daily targets or completing their allocated tasks. Many employees believe if they work from home, they can procrastinate or get away with not doing as much work as if they had physically gone into the office because they are in the comfort of their own home. If employees wish to be treated with respect, they must also respect their employer and their directions, if they are reasonable.
Another important issue during this time is related to employees with young children they are required to homeschool due to the pandemic. As many Australian states have adopted remote learning for primary and secondary students, many parents have an obligation to homeschool their children. Although older children are more disciplined and can complete the remote learning tasks themselves, younger children, such as primary school children, require assistance and guidance from their parents, who are also working from home. This can pose an issue for employers as it becomes difficult for employees to juggle homeschooling and completing their own workplace tasks for their employer. Nevertheless, both employers and employees will need to communicate and be understanding during difficult times but employees need to understand when their employer’s conduct or directions are unreasonable and thus constitutes workplace bullying. In order to discuss whether you are being bullied at work or whether your employer’s directions are unreasonable, please give us a free call on1800 333 666 .