Workplace Bullying as a WHS Issue: Legal Obligations and Liability

Bullying as a Psychosocial Hazard Under WHS Law

Workplace bullying is defined in Safe Work Australia's Code of Practice as repeated, unreasonable behaviour directed at a worker or group of workers that creates a risk to health and safety. The key elements are repetition, unreasonableness and the creation of a health and safety risk. A single unreasonable incident may not meet the legal definition of bullying, but it may still constitute another psychosocial hazard such as workplace violence, harassment or poor management behaviour.

Bullying as a psychosocial hazard is subject to the same WHS risk management obligations as any other hazard. Employers must identify bullying risk, assess it, implement controls to eliminate or minimise it and review the effectiveness of those controls. The failure to do so is a breach of the WHS duty, not merely a management or HR issue.

WHS Duties vs Fair Work Anti-Bullying Orders

The WHS dimension of bullying is separate from the Fair Work Commission's anti-bullying jurisdiction under Part 6-4B of the Fair Work Act 2009. The FWC can make orders to stop bullying but does not award compensation and does not make findings of civil liability. The FWC jurisdiction and the WHS regulatory and civil jurisdiction operate in parallel and address different questions.

In a workers' compensation common law claim, the relevant question is whether the employer breached WHS duties by failing to prevent or respond to bullying that caused the worker's psychological injury. This is a different question from whether a FWC order was or could have been made. A failure to obtain a FWC order does not preclude a WHS liability claim, and a successful FWC order does not establish WHS liability.

PCBU Obligations to Control Bullying Risk

The PCBU's WHS duty requires active management of bullying risk, not just a reactive response to complaints. This means having a bullying prevention policy, training managers and workers, monitoring workplace relationships and culture, providing accessible and confidential reporting mechanisms, investigating complaints promptly and fairly, and implementing appropriate outcomes including, where necessary, disciplinary action against perpetrators.

A policy that exists on paper but is not implemented in practice does not satisfy the WHS duty. Expert analysis examines both the adequacy of the documented system and the evidence that it was applied in the specific matter. A complaints procedure that was never explained to workers, or that workers were discouraged from using, does not satisfy the obligation to manage the bullying risk.

Adequacy of Complaint Procedures and Investigation

Where a worker made a complaint about bullying and the employer's response is in dispute, the expert analysis assesses the adequacy of the investigation process. This includes whether the investigation was conducted promptly, whether it was conducted by an appropriately qualified and independent investigator, whether procedural fairness was given to all parties, whether findings were made and communicated, and whether appropriate action followed the findings.

An inadequate investigation, or a failure to investigate at all, is a significant failure in the WHS system and frequently a material factor in the causation of ongoing psychological harm. Where a worker raised a concern and it was dismissed, minimised or not acted upon, and the bullying continued, the employer's response failure is a relevant breach. See also psychosocial hazards explained and the psychosocial expert witness page.

Documents Reviewed in Bullying Expert Analysis

• Anti-bullying, harassment and grievance policies and procedures
• Records of any complaints made by the worker, formal or informal
• Investigation reports, investigation plans and findings
• Records of management interventions or mediation
• HR correspondence, email trails and performance management records
• Training records for managers and workers on psychosocial hazards
• Records of the employer's awareness of the bullying, including witness accounts
• Any psychosocial risk assessment conducted by the employer

For more on work-related stress claims arising from bullying exposures, see the related article. Instructions in bullying matters are accepted for both plaintiffs and defendants through the psychosocial hazards expert service.