Workers who are bullied at work have a number of potential legal remedies available to them.
If the bullying has resulted in the worker suffering an illness or disorder of the mind/psychiatric injury, the worker may be entitled to make a worker’s compensation claim under the Return to Work scheme.
If the psychiatric injury causes the worker to be unable to attend work, they would be entitled to claim weekly payments of income maintenance to compensate for lost income, in addition to medical and associated expenses.
Bullying can constitute a breach of the Work Health & Safety Act 2013, as it may constitute a risk to the health and safety of the bullied worker. In these circumstances, it is possible to make a complaint to Safework SA about bullying in the work place. Safework SA may then investigate the complaint and if appropriate could take action against the employer.
However, a complaint to Safework SA does not provide any financial compensation to the bullied worker. Rather, it may result in an investigation into the workplace and, if appropriate, penalties or fines could be imposed upon the employer. That might mean that the work place will become safer in the future, but may be of little assistance to the worker who is being bullied at the time.
If the bullying is “because of” race, sex, religion, disability, family responsibilities, or other “protected” characteristics, it may be possible to bring a complaint pursuant to discrimination laws. However, in order to make such a complaint, it would be necessary that there is clear evidence that the bullying has occurred because of one of these protected characteristics.
A discrimination complaint can result in compensation paid to the bullied worker, including compensation for lost income/economic loss and for non-economic loss/pain and suffering; that is, an injury to feelings.
In recognition of the increasing problem of workplace bullying, in 2013, the Fair Work Commission was given power to intervene in cases of workplace bullying; the “Stop Bullying” jurisdiction.
A worker who is being bullied at work can make an application to the Fair Work Commission, which will call the parties together and try to explore opportunities to resolve the problems. If the Fair Work Commission is unable to resolve the matter by agreement, it can make formal Orders directing the employer to take certain action. The Fair Work Commission’s ability to intervene is limited however.
The Fair Work Commission can only intervene if there is a risk that the bullying will continue. Therefore, an employee who has resigned from employment because of the bullying would not generally be able to bring a bullying complaint to the Fair Work Commission because, having resigned from the employment, there would generally be no risk that the bullying would continue (although that may not always be the case).
Another important qualification to the Fair Work Commission’s power in this regard is that it cannot order monetary compensation.
The Fair Work Commission’s jurisdiction in relation to bullying is directed towards taking action to stop the bullying and to enable the worker in question to continue at work without risk to health and safety.
In the past the Fair Work Commission has made Orders which require certain employees not to attend at the work place at certain times and directing the way employees communicate with each other.
If there is an Enterprise Agreement or Modern Award governing the bullied worker’s employment, and that agreement or award provides for a grievance process, this process can be used to raise the issue of bullying with management and to attempt to seek a resolution to the issues. Often such clauses provide for a matter to be referred to the Fair Work Commission if it cannot be resolved “in house”.
Again, this option would probably not entitle the bullied worker to any form of monetary compensation but may be of assistance in dealing with the problem “on the shop floor” to prevent ongoing bullying.
Bullying continues to be a real issue in the modern workplace.
If you are experiencing bullying at work, Andersons recommends that, if you are a Union member, you contact your Union in the first instance (as many of the remedies available do not provide for monetary compensation, many people are reluctant to incur the expense of hiring a lawyer to assist them).
If you are not a member of a Union or if you wish to seek assistance external to the Union, Andersons Solicitors can provide a free first interview where we can discuss the various legal options available to a bullied worker and have expert industrial lawyers who can assist with claims or complaints in relation to bullying.