For employers, there can sometimes be a grey area where taking disciplinary action, discussing poor performance, or directing and controlling an employee’s work, is mistaken as harassment or bullying by an employee. This can be a difficult and delicate area for employers, where what they regard as reasonable management action is instead viewed by the employee as bullying.

The Fair Work Act defines workplace bullying as “when a person or group of people repeatedly act unreasonably towards them or a group of workers” and “the behaviour creates a risk to health and safety”.

This definition can be further broken down as follows:

• “Repeated behaviour” is demonstrated if there is persistent, unreasonable behaviour of the same kind, or various types, over a period of time.
• “Unreasonable behaviour” can include victimising, humiliating, intimidating or threatening behaviour. The objective legal standard of “unreasonable” is whether a reasonable person might view the behaviour as unreasonable in the circumstances.

Examples of bullying include:

• behaving aggressively;
• humiliating or belittling comments;
• teasing or practical jokes;
• pressuring someone to behave inappropriately;
• victimisation;
• excluding someone from work-related events;
• making unreasonable work demands; and
• creating and spreading malicious rumours.

Managers should not feel intimidated by workplace bullying laws to the extent they feel they cannot give critical and constructive feedback to non-performing employees.

Although such performance management may be uncomfortable for an employee, provided a manager or supervisor is exercising their legitimate authority in a reasonable way, they will not be exposed to criticism by the courts.

Courts would accept the following types of management action as being reasonable:

• setting achievable and realistic goals and deadlines;
• deciding not to promote a worker when a fair and transparent selection process has been followed;
• challenging a worker about their unreasonable behaviour and directing them to modify behaviour; and/or
• taking disciplinary action where appropriate.

Employers should be aware that a single incident of unreasonable behaviour does not amount to workplace bullying, however, such a single incident could escalate and become repeated, leading to workplace bullying.  It should not be ignored.

Business owners need to guard against a workplace culture comprising behaviour that has long been considered “acceptable”. In certain industries, the idea that aggressive behaviour, crude conversations, innuendo or offensive jokes are no longer acceptable.

Employers need to be aware that an employee can complain about such conduct as harassment even if the conduct in question was not specifically targeted at him or her.

Employers are also subject to state and federal occupational health and safety legislation which requires them to comply with any measures that promote health and safety in the workplace. That obligation includes taking measures to prevent the likelihood of bullying and harassment at work.

Whether it’s part of a wider code of conduct or a specific company policy on bullying, employers are encouraged to set a clear standard for workplace behaviour which may include:

• establishing consultation between employers and employees, or health and safety representatives, to discover if bullying is occurring or likely to occur within the business;
• providing information and training on workplace bullying policies and procedures; and
• implementing workplace bullying reporting and response procedures.

Peters Bosel Lawyers has experienced practitioners when it comes to all issues related to bullying and harassment, from internal policy development through to dealing with the Fair Work Commission and compliance with other statutory requirements. Contact us today for further advice and guidance.