Bullying & Harassment

What is Bullying & Harassment?

Workplace bullying and harassment are serious psychosocial hazards that you must manage systematically. They're not merely interpersonal disputes or personality clashes—they're safety risks that cause psychological injury.

Understanding the legal distinction between bullying and legitimate management action is the foundation of your compliance obligations and the first step in protecting your workforce from harm.

The Core Definition

To accurately identify bullying in your organisation, you must look for three specific criteria defined by Safe Work Australia and the Fair Work Act 2009 (Cth). If any element is missing, the behaviour may be conflict or misconduct, but it's not likely to be legally classified as bullying.

1. Repeated Behaviour: The behaviour must be persistent. A single incident—such as a one-off angry outburst or rude comment—is not bullying, though you should still address it to prevent escalation. You must look for patterns: a series of emails, sustained exclusion, or recurring verbal attacks.

2. Unreasonable Behaviour: The conduct must be such that a reasonable person, considering the circumstances, would find it unreasonable. This is an objective test. It doesn't matter if the perpetrator "didn't mean it" or believes they're "just being tough." If a reasonable observer would see the behaviour as victimising, humiliating, intimidating, or threatening, it meets this threshold.

3. Risk to Health and Safety: The behaviour must create a risk to the worker's health and safety. In the context of the WHS Act, "health" explicitly includes psychological health. Bullying causes stress, anxiety, and depression, which are physiological and psychological injuries.

Distinguishing Bullying from Harassment and Discrimination

Bullying, sexual harassment, and discrimination are distinct legal concepts with different reporting pathways and liability thresholds. You need to understand these differences to apply the correct grievance procedures.

Sexual Harassment: Unlike bullying, sexual harassment does not need to be repeated. A single unwelcome sexual advance, request for sexual favours, or conduct of a sexual nature can constitute unlawful harassment. Recent changes to the Sex Discrimination Act 1984 (Cth) have introduced a "positive duty" on you to eliminate sexual harassment, shifting the focus from responding to complaints to active prevention.

Discrimination: If a worker is mistreated because of their race, gender, religion, or disability, this is discrimination. While a bully might target someone simply because they don't like them, a discriminator targets them because of who they are. The Fair Work Act prohibits you from taking adverse action against an employee for discriminatory reasons.

What is NOT Bullying?

Your organisation must be clear on what does not constitute bullying. The most common defence against a bullying claim is that the behaviour was Reasonable Management Action (RMA) carried out in a reasonable manner.

It is reasonable for your managers to:

• Allocate work and set realistic timelines
• Give fair and constructive feedback on performance
• Discipline a worker for misconduct
• Direct and control how work is done

However, the "reasonable manner" test is critical. A manager can legitimately place a worker on a Performance Improvement Plan (PIP), but if they do so by screaming at the worker in an open-plan office or mocking them in front of peers, the action stops being reasonable and becomes bullying.

How Bullying Works: The Mechanism of Psychosocial Hazards

Bullying is rarely the result of a single "bad apple." Research indicates that organisational structures and systems of work—the "bad barrel"—are the primary drivers of bullying behaviour. To effectively manage this risk, you must understand how bullying emerges from systemic hazards.

Bullying typically arises in environments where psychosocial hazards are uncontrolled. These are aspects of work design that induce stress, which in turn triggers maladaptive behaviours like aggression or exclusion.

The Spectrum of Bullying Behaviours

Bullying manifests in both overt and covert ways. While overt bullying is easy to spot, covert bullying is often more damaging because it's harder to prove and can be dismissed as "paranoia" by the victim.

Overt Behaviours (Direct):

• Verbal abuse, shouting, or swearing
• Physical intimidation or threatening body language
• Public humiliation or belittling comments
• Practical jokes that humiliate or endanger

Covert Behaviours (Indirect):

Withholding Information: Deliberately denying a worker the information they need to do their job, setting them up to fail.

Social Isolation: Excluding a worker from team lunches, meetings, or email loops. "Ghosting" a colleague in a professional setting.

Task Destabilisation: Constantly moving the goalposts, setting impossible deadlines, or assigning menial tasks far below a worker's skill level to demean them.

Reputation Undermining: Spreading gossip or rumours about a worker's personal life or professional competence.

The Cycle of Escalation

Most bullying cases don't start with abuse—they start with unresolved conflict. Differences of opinion are natural, but when your organisation lacks effective conflict resolution mechanisms, disagreements can fester.

A "personality clash" that is ignored by management can escalate into a pattern of resentment and hostility that eventually meets the threshold of repeated, unreasonable behaviour. This highlights the importance of early intervention—managing conflict before it becomes bullying.

Why it Matters: Legal, Financial, and Cultural Consequences

The implications of workplace bullying extend far beyond the immediate distress of the victim. For you and your organisation, the consequences are legal, financial, and cultural.

Legal Liability and Compliance

You operate in a complex regulatory environment where bullying is treated as a serious breach of duty.

Work Health and Safety (WHS) Act: As a Person Conducting a Business or Undertaking (PCBU), you have a primary duty of care to ensure workers are not exposed to risks to their psychological health. Failure to manage the risk of bullying is a criminal offence.

Officer Due Diligence: Your senior leaders (Officers) must exercise due diligence. They cannot simply wait for complaints. They must actively monitor the workplace for signs of bullying (e.g., reviewing turnover data) to verify that the PCBU is meeting its duties.

Worker Duties: Your workers also have a duty to take reasonable care that their acts do not adversely affect others. This provides a legal basis for you to discipline bullies for safety breaches, not just misconduct.

Fair Work Act 2009: This Act allows a worker who is currently employed to apply to the Fair Work Commission (FWC) for an "Order to Stop Bullying." While the FWC cannot award financial compensation, it can issue orders requiring you to change policies, monitor relationships, or retrain staff. Breaching such an order attracts significant civil penalties.

Positive Duty (Sex Discrimination Act): Following the Respect@Work report, you now have a positive duty to eliminate sexual harassment and sex-based discrimination as far as possible. The Australian Human Rights Commission (AHRC) has the power to investigate your organisation even without a specific complaint if they suspect you are failing this duty.

Business Value and Cost

Beyond the courtroom, the cost of bullying to your business operations is staggering.

Productivity Loss: Victims of bullying are often disengaged, anxious, and less productive. They spend time worrying about interactions rather than working.

Absenteeism and Turnover: Bullying is a leading cause of stress leave. Psychological injury claims are the most expensive type of workers' compensation claim, often keeping workers off duty for months or years. If you tolerate bullying, your best talent will leave to protect their health.

Reputational Damage: In an era of social media and Glassdoor reviews, a reputation for toxic culture will severely hamper your ability to recruit top talent.

Common Challenges

Even with the best intentions, many organisations struggle to effectively eradicate bullying. You need to be aware of these common failure modes to avoid repeating them.

The "Cone of Silence" and Under-Reporting

Research shows that up to 59% of bullying victims do not report the behaviour.

Why it happens: Workers fear reprisal, believe "nothing will change," or fear being labelled as "troublemakers" or "weak."

The Consequence: You may believe your culture is healthy because your formal grievance log is empty, while toxic behaviour is rampant underground. This "data blind spot" exposes you to sudden, catastrophic liability when a worker finally breaks down or goes to an external regulator.

The Trap of "Zero Tolerance"

Many organisations proudly display "Zero Tolerance for Bullying" posters. In practice, these policies often fail because they lack nuance.

The Dilemma: If a high-performing manager makes one mistake or has one bad day, does "zero tolerance" mean they must be fired? Often, managers faced with this binary choice (fire or do nothing) choose to do nothing, letting the behaviour slide.

The Fix: Move towards a "Zero Apathy" approach. This means every report is taken seriously and addressed proportionately—whether through coaching for a minor infraction or termination for severe misconduct—rather than making empty promises of instant dismissal that you cannot keep.

Distinguishing Performance Management from Bullying

Bullying complaints are sometimes "weaponised" by underperforming employees to stall legitimate disciplinary processes.

The Challenge: An employee facing a Performance Improvement Plan (PIP) may lodge a bullying complaint against their manager to "freeze" the process.

The Solution: You must have robust documentation. If you can prove that the management action was reasonable, evidence-based, and conducted fairly, the bullying claim will likely fail. However, untangling these scenarios requires sophisticated investigation skills to determine if the complaint is genuine or vexatious.

Bystander Inaction

Bullying rarely happens in a vacuum. Bystanders often witness the behaviour but do nothing, which validates the bully and isolates the victim.

The Barrier: Bystanders often don't know how to intervene safely. They fear becoming the next target.

The Solution: Training must focus on empowering bystanders with low-risk intervention strategies, such as interrupting the interaction ("Hey, can I borrow you for a sec?") or supporting the victim privately afterwards.

Best Practices

To move from compliance to genuine prevention, you should implement a comprehensive risk management framework.

Prevention: Identify and Control Psychosocial Hazards

Don't wait for a complaint. Proactively assess your workplace for the structural risks that breed bullying.

Consultation: Regular consultation with Health and Safety Representatives (HSRs) is mandatory. Use anonymous climate surveys to ask specific questions about workload, role clarity, and organisational justice.

Data Analysis: Review your exit interviews, sick leave data, and turnover rates. A "hotspot" of high turnover in one specific team is often a red flag for a bullying manager.

Job Design: Redesign roles to ensure workers have clear descriptions and reasonable workloads. Ensure supervisors have a span of control that allows them to actually support their teams, rather than just drive them.

Intervention: Trauma-Informed Investigations

When a report is made, your investigation process must be safe and fair. Traditional adversarial investigations can cause "institutional betrayal," doing more damage than the original bullying.

Trauma-Informed Approach: Recognise that the victim may be traumatised. Ensure the interview environment is private and safe. Give them control over the process where possible (e.g., choice of interviewer gender, time of day).

Neutrality: The investigator must be impartial. If the allegation involves a senior leader, you must use an external investigator to ensure independence and avoid conflicts of interest.

Procedural Fairness: You must also be fair to the respondent (the alleged bully). They have a right to know the specific allegations and to be given a reasonable opportunity to respond. The decision-maker should be separate from the investigator to prevent bias.

Resolution and Recovery

Proportionate Outcomes: If bullying is substantiated, the consequence must fit the severity. Options include written warnings, mandatory training, demotion, or termination.

Restoration: Regardless of the outcome, the relationship between the parties (if they remain) must be repaired. Structured mediation, facilitated by an expert, can help re-establish professional boundaries.

Support: Ensure both parties have access to Employee Assistance Programs (EAP). Investigations are stressful for everyone involved.

Leadership and Culture

Role Modelling: Your leaders must model the behaviour they expect. A "brilliant jerk"—a high revenue generator who bullies staff—must be brought into line. If you tolerate their behaviour because of their financial contribution, you send a message that profit matters more than safety.

Bystander Training: Implement training that teaches workers practical scripts for calling out disrespectful behaviour in the moment. This shifts the culture from "don't snitch" to "we look out for each other".