Q.  The company is currently performing its annual performance review of all employees. One employee has received a critical performance review from their manager. In doing so, the manager counselled the employee on how to improve their performance. The employee has claimed they are being bullied by the manager and has threatened to resign and lodge a complaint with the Fair Work Commission. 

Would the manager’s behaviour in this circumstance constitute bullying? 

A. Not as a stand-alone incident. Bullying is when an individual or group of individuals repeatedly behave unreasonably toward the worker, and it creates a workplace health and safety risk.

Proof of actual harm to health and safety is not necessary, provided that a risk to health and safety created by bullying behaviour exists. 

To make a bullying claim to the Fair Work Commission, a person must be a ‘worker,’ which means an employee who resigns their employment cannot make a bullying complaint under the Fair Work Act.

The Fair Work Commission’s anti-bullying charter is to improve workplace culture and prevent bullying rather than ordering compensation or damages to a claimant.

Bullying does not include: 

  • genuine and reasonable disciplinary procedures 

  • genuine and reasonable performance management – constructively delivered feedback or counselling (as in the above case), or 

  • directing and controlling how work is done. 

In this case, the employee has reacted negatively to an objective performance management appraisal, so this would not constitute bullying. 
 

Examples of bullying behaviour 

In a matter before the Fair Work Commission, the features of repeated unreasonable behaviour constituting bullying at work were identified as: 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. See Mac v Bank of Queensland [2015] FWC 774.

Such behaviour may not be obvious. For example, a decision handed down by the Fair Work Commission found that a school principal bullied a teacher over a period of three years. Bullying behaviour included having to attend induction training after taking leave and being assigned a mentor with less teaching experience.  


Other remedies 

The employee can pursue other avenues to seek a remedy for the alleged bullying. Most common avenues seeking compensation are: 

  • making a complaint to the relevant WorkCover or WorkSafe authority - an employer found liable for bullying may face prosecution for breaching workplace health and safety legislation. This may result in fines or, in serious cases, imprisonment. 

  • workers' compensation claim – a possibility where workplace bullying has resulted in the employee suffering a mental or physical injury. 

  • equal opportunity complaint - if the bullying is deemed to be discrimination, harassment, vilification, or victimisation, for example, an employee repeatedly targeted for unfair/bullying treatment based on race, sex or age, may be unlawful under racial, sex or age discrimination, or 

  • making a common law claim where the employer breached the implied contractual term of ‘mutual trust and confidence,’ which may expose the employer to a court for damages to the employee. 

In Victoria, the Crimes Act 1958 [Vic] was amended so that some bullying can also amount to stalking, which is a criminal offence reportable to the police. 
 

Bottom line 

A one-off negative performance appraisal may not constitute bullying under the Fair Work Act, but repeated and unreasonable behaviour towards an employee can. Important steps in controlling bullying in the workplace include maintaining up-to-date policies about bullying and appropriate workplace behaviour.