This case study introduces us to Melanie. She works in a customer service role that requires her to be sweet, switched on and conflict avoidant. Unfortunately Melanie’s manager has forgotten her place. This manager has failed to recognise she has a duty to treat her employees with respect and care. She’s in breach of workplace health and safety law, if the behaviour becomes a repeated pattern of a persistent nature.
The legislation and the external bodies ensuring Australian workplaces are preventing bullying and harassment differs, based on state and even the employment matter. In this case study, we’re going to the sunshine state of Queensland, to a mid-sized city on the east coast of Australia to meet Melanie:
If your safety is impacted while you’re out in a public setting, the Criminal Code Act 1899 (Qld) has your back and you’d have your matter heard by a judge in a court. The court you attend depends on how serious the criminal act is. In the case of safety issues in the work setting, you’re covered by just one external body known as the Regulator. Queensland, the state where Melanie lives, is supported by WorkSafe Queensland.
Melanie calls WorkSafe Queensland to establish what she can do and speaks to a worker qualified in the area of workplace health and safety, one who also knows being bullied can have a tremendous impact on the employee’s mental well-being. This can range from an inability to focus, conditions such as anxiety and depression, through to suicidal thoughts. This is why bullying and harassment is something that can be prosecuted under the relevant Act.
Workplace Health and Safety Act 2011 (Qld) + Workplace Health and Safety Regulation 2011 (Qld)
What happens next?
The worker steps Melanie through a series of eleven questions and determines if she is being bullied and harassed. The experience of discrimination may also be revealed through this line of questioning.
You can read more in the Dealing With Bullying – A Worker’s Guide here but two key questions are vital:
Is the behaviour being repeated?
Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.
If it is a one-off incident of unreasonable behaviour, it is not workplace bullying.SafeWork Australia
Is the behaviour unreasonable?
Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable including behaviour that is victimising, humiliating, intimidating or threatening.SafeWork Australia
The worker from SafeWork Queensland will send out a large information pack, with a form to complete and an information guide. This is where you need to prepare to receive a lot of information. Do the best you can with the paperwork, return it and wait for SafeWork Queensland to make contact. They will assign an Investigator to read over what you have contributed.
What else is important to know?
It is important to acknowledge this investigation is in relation to processes, procedures and paperwork. Examples include:
- Does the employer offer training on how to perform the duties required to complete the role with success?
- Does the employer offer follow up training, as a buffer or when when duties change?
- Does the employer have policies in place to make it easy for workers to find, work out what process to follow and who to raise concerns with?
- Does the employer have policies and procedures in place to deal with bullying and harassment?
- Are they following these when dealing with inappropriate workplace conduct?
- Is the employer following due process around workplace investigations?
These are a few examples. The benefit of having the Regulator involved as an external body, not attached to the organisation and of an impartial nature, is simple:
What else should I consider?
Based on experience, it’s unlikely the person who is behaving inappropriately will change. They have made their way through interpersonal relationships by using power over, power plays and control. They know no other way. Even worse, with those with disordered personality traits, such as those in narcissism and psychopathy, gain benefits from this treatment of others. Some have a sadistic side in which they gain enjoyment from the pain they inflict.
In certain cases, where there is more than one person who is inflicting damage, the Regulator will need to take into account the impact of workplace mobbing. Again, this is around workplace policy and the correct implementation of it, rather than details specific to your needs at work. That aspect is handled through a Stop Bullying Order.
Bringing in an external body, of any type is challenging, takes courage and comes with risks but it is often the only way to be bully free. The other is to leave and find somewhere else to work. This also comes with its own set of pitfalls, one being the sense of injustice, but at the end, reducing damage to your physical and mental well-being is paramount.
The Fair Work Commission
This one can be tricky to navigate but it starts with a quick test on the Fair Work Ombudsman website. The important part to consider is the outcome of not taking action. Failure to act can lead to increased levels of bullying and inappropriate conduct. Let’s break this down into simple steps:
Follow the internal review process
*When faced with adversity, it is important to be as proactive as possible with your mental well-being. The Motivation app lets you tailor quotes to your needs and can be set to send you uplifting messages frequently, or less frequently if you’re feeling overloaded.
Take it out of the workplace
As sad as it is to admit, there are employers who would prefer to leave an employee exposed to unsafe work conditions than deal with problematic behaviour. That said, if you do submit a Stop Bullying Order and have not attempted to resolve it internally, the Fair Work Commission will send you back to do so.
It is an unfair presumption of the legal system that we are all equal before the law. This presumption forgets the power imbalances at play and the reality that some victims are too scared to speak up internally, even with strong systems, such as Human Resources, in place.
It is for this reason you must start thinking of this as a game you play. You act as though you are engaging in the process, until you have an impartial, external third party preside over your case. The Commissioner, is the name of an employment judge. It’s best to do this with advice from SafeWork and general legal support.
What do I need?
You complete a form, called a F72 and pay a fee. As with any government body who has a cost associated, this fee can be waivered due to financial hardship.
Who can help?
There are a list of legal resources noted on our site.
The Dynamic Duo
Workplace bullies, typically, have reached the position of authority because they have never been held to account. For this reason, the process of using both the SafeWork option and the Fair Work Commission Stop Bullying Order can balance out unfair power dynamics.
The alternative option, if the symptoms and side effects from the bullying are bad enough, is to seek support through the Workers Compensation scheme, either attached to a state regulatory body or your employer’s self-funded scheme.
The first step is to see your doctor and ask for advice. Alternatively, there are services set up specifically to handle Workers Compensation matters.
You Can’t Handle The Truth
The easiest, but also the most expensive option, is to hand it over to a lawyer to pull out key components and support you to submit your case, or do it on your behalf. Lawyers have a technical mind and know what information the Fair Work Commission needs in order to progress the matter in your favour.
There are also No Win No Fee lawyers available but be mindful of the fine print and make sure they cover your particular area of law, it can change based on the state you’re in, whether or not you fall under the federal jurisdiction, or if your employer is self-insured.
Sometimes the most effective way to get your point across is to walk away. It is simple, you need to give notice and you don’t need to do anything other than meet your employment contractual obligations under your Award, Enterprise Agreement, Enterprise Bargaining Agreement or contract. These base provisions and relevant links can be found under the National Employment Standards section of our site.