Workplace bullying has been a chronic problem in many industries in particular; healthcare, education, childcare and not-for-profits. It is unlawful bullying to harass and intimidate a fellow employee in the workplace repeatedly and without justification to achieve an ulterior motive and creates a risk to health and safety. That motive may be to attempt to humiliate or force the bullied employee to resign without being paid proper entitlements and where there is no valid reason for that employee to do so.
It is not bullying to demand that employees reach standards of performance which are reasonable and for which the employee has the skills and training to meet.
The Fair Work Tribunal has decided that it is difficult for employees who represent themselves to persuade the tribunal to stop the bullying. A Vice President and two other senior members have recently thrown out an appeal by a bullied employee on a technicality (Hammon v. Metricon Homes Pty Ltd T/A Metricon Homes and others). Mr Hammon claimed to be bullied by four men. He established four matters.
The bullying related to the safety of Metricon’s site managers, its contractors and the public. However, his employer Metricon merely received a slap on the wrist for ‘some shortcomings in Metricon’s practices’.
The Fair Work Commission sub-divided the matters of bullying into major and minor issues. It then found that when taken separately, there was insufficient repetitive bullying. No doubt the subject of the bullying would not see the distinction.
Examples of bullying
Wrongfully, a bullied employee might be required to perform an excessive work level, be isolated or threatened by a fellow employee. It is not just managers who might bully an employee; it could be a competitor for a job promotion or the like. Sometimes it can be done by a manager needing a scapegoat upon whom to shed blame for the manager’s incompetence or error. Other times it is to allow a new manager to bring in a friend or ally. The Fair Work Act 2009 (Cth) section 789FD defines workplace bullying as:
A worker is bullied at work if (please see below):
What must be of real concern to any bullied employee is that the workplace bullying is actually an orchestrated attempt to deny that bullied employee an employment right or entitlement. For example if a company’s business is in decline – sales might be down – the management might impose unrealistic sales targets only to later bully the employees not meeting those targets which are demonstrably unachievable. The bullied employee might feel pushed to resign or be sacked. All the while, the bullied employee is possibly entitled to a genuine redundancy.
What should an employee do to successfully stop the bullying?
We provide answers and effective strategies.
It could be a mistake to lodge a workplace bullying complaint to the Fair Work Commission if other more suitable or appropriate remedies are available.
If you feel like you are being bullied at work and wish to lodge a bullying complaint, it should be checked by a lawyer. The recipient usually will employ a lawyer to ‘take it apart’.
Please don’t hesitate to speak to an experienced employment lawyer at McDonald Murholme.
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