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Workplace Bullying: where to draw the line on inappropriate behaviour?

While the media has widely had a laugh at the expense of a Victorian man who last month was denied a $1.8 million payout for workplace bullying against a colleague he alleged would repeatedly and deliberately fart in his office, the case raises interesting questions about where to draw the line in workplace jokes.

Workplace bullying encompasses a range of behaviours, many of which may appear innocuous or be brushed off as colleagues having a bit of a fun. Indeed, a classic element of bullying is to diminish the response as an overreaction. Behaviours build up over time and cause real harm. Very serious incidents of inappropriate behaviour in the workplace start out as jokes or teasing.

Legally, a behaviour must be repeated and unreasonable so that it creates a risk to health and safety for it to be workplace bullying.

Some common examples of workplace bullying include:

  • Aggressive physical or verbal behaviour
  • Unjustified criticism
  • Psychological harassment like playing mind games or ganging up on you
  • Teasing and practical jokes
  • Excluding or isolating people in the workplace
  • Unreasonable work demands or deliberately making your work schedule difficult

A single incident is not workplace bullying. However, if someone’s behaviour begins to repeat or escalate it is important to keep a record of what happened and how you responded in case you need to make a complaint. This will be helpful to establish how persistent the behaviour is and whether it was unreasonable.

Whether something is unreasonable must be seen in light of the circumstances and requires an assessment of what a hypothetical “reasonable person” may consider is appropriate or necessary. This means that not everything that happens at work that makes a person upset is workplace bullying: for example, management is entitled to make decisions about how you work and your performance, as long as they are reasonable.

What Can I do if Workplace Bullying has Occurred?

If you think you have been subject to workplace bullying, you have a number of options. In the first instance, it’s important to report the incidents to a manager or someone else in the workplace, like HR. Employers have a duty of care while you are at work, that includes ensuring your health and well-being. They may be able to intervene and put a stop to any potential bullying before it escalates. Beyond the workplace, the Union applicable to your industry may be able to offer you advice about your rights as an employee and what you can do next.

A further option that is available if you are still employed where the bullying is alleged to have occurred and you think that it is unlikely to stop is to take action at the Fair Work Commission. If the Commission agrees that you have been bullied, they can make a number of orders to prevent it, including preventing individuals from communicating or attending work, commissioning specific training for your employer about how to deal with workplace bullying and seeking legal assurances that your employer will comply with a workplace bullying policy.

A successful action in the Commission for workplace bullying will not entitle you to a payout, but depending on your circumstances you may be able to launch separate proceedings to recover damages for lost earnings or physical or mental harm that has arisen because you were bullied in the workplace.

If you think you have been a victim of workplace bullying, please get in touch by email david@segelovtaylor.com.au or by phone (02) 8880 0500.

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