It’s not bullying if there isn’t repeated unreasonable behaviours

For a situation to be bullying in the workplace, there must be three key characteristics present. These are unreasonable behaviour, that is repeated and creates a risk to health and safety.

Recently, Safe Work SA has claimed their first successful bullying prosecution. Unfortunately, in doing so, they have either used the term “bullying” prematurely or they are mistaken. With the matter yet to be finalised, the case does not currently meet the definition of bullying, because it fails to demonstrate the repeated characteristic of the definition.

In this article, we explore what does repeated mean in the context of workplace bullying.

What guides our definition of workplace bullying?

In Australia, workplace bullying is defined by law (one of the few countries that do) in the Fair Work Act.

The Fair Work Act defines a worker to be bullied at work if:

(a)  while the worker is at work in a constitutionally-covered business:
(i)  an individual; or
(ii)  a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b)  that behaviour creates a risk to health and safety

This definition is consistent with 30 years of international research on workplace bullying. The Safe Work Australia guidelines definition of bullying is consistent with the Fair Work Commission.

If we narrow down on the term repeated, the Fair Work Commission’s Anti-bullying Benchbook states:

The concept of repeatedly behaving unreasonably refers to the existence of persistent unreasonable behaviour, and may include a range of behaviours over time. There is no specific number of incidents required for the behaviour to be ‘repeated’, provided there is more than one occurrence, nor does the same specific behaviour have to be repeated.

What does repeated unreasonable behaviour look like in practice?

A number of FWC cases for anti-bullying orders provides us with a good understanding of what is repeated unreasonable behaviour. All are exemplified by a number of unreasonable behaviours that have occurred over a number of months. The following are a few examples.

  • Bowker and Others v DP World Melbourne reported 37 instances of unreasonable behaviour between mid-2013 and July 2015. The behaviours included cyber-bullying, ostracism, exclusion from support and threats.
  • Lacey and Kandelaars v Murray’s Australia included repeated behaviours of finding fault with work where there was none, intimidating behaviour, acting in a confrontational manner, and directing the employee to inaccurately complete his log book contravening fatigue laws. This occurred between October 2016 to February 2017.
  • Burbeck v Alice Springs Town Council there were four instances of unreasonable behaviour between June 2016 and February 2017 involving instances of unreasonable management action.
  • Watts v Ramsay Health Care involved eight incidents of unreasonable behaviours between April to August 2017 including unreasonable management action, verbal abuse, rumours and gossiping, and eves-dropping.

In contrast, the FWC found the following cases were not workplace bullying because they lacked repeated instances of unreasonable behaviour.

  • H Singh alleged in an incident that the person named in his application for an anti-bullying order had verbally and physically assaulted him. The applicant advised that the behaviour only occurred once on 31 December 2014. As this lacked the repeated element, this was not found to be a case of bullying.
  • An unnamed company training manager was called into her General Managers office. The GM provided feedback on her unacceptable performance. The training manager alleged the feedback and process was unreasonable, but the FWC could only find one instance of unreasonable behaviour by the General Manager, that being inadequately addressing her request for a support person. Without the repetitive unreasonable behaviour, it was not found to be bullying.

A vital part to preventing and managing workplace bullying is understanding the definition. Inaccurate use of the word bullying only adds to confusion. It’s bullying 101 which we can’t afford to get wrong.

Can your employees correctly identify workplace bullying situations? If not, we can help you.

Contact us today for a free, confidential discussion on how we can help you.

Related Articles