Workplace Bullying at Work: What the Fair Work Commission Can (and Cannot) Do

By Brian AJ Newman LLB Principal Employment & Human Rights Advocate

Workplace bullying is more than just "part of the job"

Every year, thousands of Australian workers experience behaviour that leaves them anxious about going to work. Some are humiliated in front of colleagues. Others are isolated, undermined, subjected to malicious rumours or targeted by repeated intimidation.

Many employees assume that once workplace bullying occurs, the Fair Work Commission can order compensation. That is one of the biggest misconceptions in Australian employment law.

The Commission's anti-bullying jurisdiction is designed for one primary purpose: to stop bullying before further harm occurs—not to compensate workers for harm that has already been suffered.

Understanding this distinction is critical when deciding what legal pathway best protects your rights.

What is workplace bullying?

The Fair Work Act sets a specific legal test.

A worker is bullied at work if:

• an individual or group repeatedly behaves unreasonably towards them while they are at work; and

• that behaviour creates a risk to their health and safety.

Both elements must exist.

Not every disagreement, personality clash or unpopular management decision amounts to workplace bullying. The conduct must be repeated, unreasonable, and create a genuine risk to health and safety.

One incident is usually not enough

Many people contact us after experiencing a single heated argument or unpleasant meeting.

While a single incident may be extremely serious, the anti-bullying jurisdiction generally requires repeated unreasonable behaviour.

Repeated conduct might include:

• ongoing humiliation

• repeated verbal abuse

• continual exclusion from meetings

• persistent intimidation

• repeated false accusations

• continual undermining of work

• spreading malicious rumours

• repeated victimisation.

The Commission has recognised that bullying often involves an ongoing pattern rather than an isolated event.

Workplace Bullying at Work: What the Fair Work Commission Can (and Cannot) Do

Bullying isn't limited to managers

Bullying can come from almost anyone in the workplace.

Examples include:

• supervisors

• senior managers

• co-workers

• contractors

• volunteers

• clients

• customers

• visitors.

If the behaviour occurs while you are at work and satisfies the legislative test, the identity of the bully is less important than the conduct itself.

The biggest misunderstanding: There is no compensation

This surprises many workers.

The Fair Work Commission cannot award compensation in an application for orders to stop bullying.

Its role is preventative.

If satisfied that workplace bullying is occurring and there remains a future risk, the Commission may make orders designed to prevent the bullying from continuing. Those orders are not intended to punish anyone or compensate the worker financially.

What can the Commission order?

Depending on the circumstances, the Commission may make orders requiring changes such as:

• no further direct contact between individuals

• changes to reporting arrangements

• communication protocols

• behavioural requirements

• workplace training

• supervision arrangements

• dispute resolution procedures

• other measures aimed at eliminating the future risk of bullying.

The Commission has broad flexibility when crafting preventative orders, provided they are directed towards stopping future bullying.

There must still be a future risk

This is another critical requirement.

Even if bullying occurred in the past, the Commission generally cannot make anti-bullying orders if there is no ongoing risk that the worker will continue to be bullied.

For example:

• the worker has resigned

• the alleged bully has left the business

• the workplace has fundamentally changed

• the risk has otherwise disappeared.

Without an ongoing risk, the Commission's jurisdiction is significantly limited because its purpose is prevention rather than punishment.

Reasonable management action is not bullying

One of the most misunderstood provisions of the Fair Work Act is the exclusion for reasonable management action.

Employers are entitled to:

• manage performance

• investigate misconduct

• issue warnings

• direct employees

• conduct disciplinary processes

• allocate work

• monitor performance.

These actions do not constitute workplace bullying simply because an employee dislikes them.

The key question is whether the management action was both:

1. reasonable; and

2. carried out in a reasonable manner.

Even legitimate management decisions can become unlawful if implemented unfairly, aggressively or without procedural fairness.

The impact on workers can be devastating

Bullying rarely remains confined to the workplace.

The Fair Work Commission recognises that prolonged bullying commonly contributes to:

• anxiety

• depression

• sleep disturbance

• stress-related illness

• nausea

• psychological injury

• reduced wellbeing.

Importantly, a worker does not necessarily have to prove that psychological injury has already occurred. The legislation requires proof that the conduct creates a risk to health and safety.

Other legal options may provide compensation

Where bullying is connected with a protected attribute such as:

• race

• sex

• disability

• age

• religion

• pregnancy

• family responsibilities

other legal avenues may be available.

Depending on the circumstances, workers may also have rights under:

• General Protections provisions of the Fair Work Act;

• federal or state anti-discrimination legislation;

• human rights legislation;

• work health and safety laws;

• workers' compensation legislation;

• unfair dismissal laws where employment has ended.

Unlike anti-bullying orders, some of these jurisdictions can provide financial compensation if the legal requirements are established.

Early action matters

One of the greatest mistakes workers make is waiting until they resign.

By the time employment has ended, the opportunity to seek preventative anti-bullying orders may no longer exist.

Keeping contemporaneous records, preserving emails and messages, identifying witnesses, and obtaining appropriate medical support where necessary can significantly strengthen any future application.

Final thoughts

Workplace bullying should never be accepted as "just part of the job."

Australian workplace laws recognise the serious health and safety risks created by repeated unreasonable behaviour. However, choosing the correct legal pathway is critical. An anti-bullying application may stop future conduct, but it is not designed to compensate workers for past harm.

Every situation is different. A careful assessment of the facts will often determine whether an anti-bullying application, a general protections claim, an unfair dismissal application, a discrimination complaint, or another remedy offers the strongest avenue for protecting your rights.

Need assistance?

BAJN Employment & Human Rights Advocates assists workers throughout Australia with:

• Workplace bullying

• General Protections claims

• Unfair dismissal

• Workplace discrimination

• Sexual harassment

• Human rights complaints

• Workplace investigations

🌐 www.bajn.au📧 gethelp@bajn.au📞 1800 238 622

This article provides general information only. BAJN provides professional employment and human rights advocacy services. It is not legal advice, and readers should obtain advice appropriate to their individual circumstances.