When faced with workplace bullying in Australia, many employees reach a point where they think, “I can’t take this anymore. I should just resign.”
But before handing in your resignation, it is important to understand your legal rights and options. What can you do if you report the behaviour to Human Resources and your employer fails to take action?
Workplace bullying can affect your performance, career prospects and mental health. You should not feel that you have to put up with it indefinitely. However, understanding what constitutes workplace bullying, keeping records of what has happened and knowing your options can help you make informed decisions.
This article explains how workplace bullying is defined under Australian law, what steps you can take if you are being bullied, and what to consider before resigning.
What Constitutes Workplace Bullying Under Australian Law?
Under the Fair Work Act 2009, workplace bullying generally occurs when an individual or group repeatedly behaves unreasonably towards a worker or group of workers, and that behaviour creates a risk to health and safety.
Examples may include:
- Repeatedly humiliating or belittling an employee in meetings or workplace communications.
- Deliberately isolating an employee or consistently excluding them from essential work-related communications.
- Repeatedly imposing unreasonable workloads or deadlines.
- Spreading false rumours or persistently undermining an employee’s professional abilities.
- Repeatedly engaging in threatening, intimidating or otherwise unreasonable conduct.
Whether behaviour amounts to workplace bullying depends on the circumstances, including how often it occurs, the nature of the conduct and the available evidence. Feeling upset or unfairly treated does not, by itself, establish that workplace bullying has occurred.
Does a Single Incident Count as Workplace Bullying?
Workplace bullying generally requires repeated unreasonable behaviour. A one-off argument or unpleasant interaction will not usually meet this particular legal definition. However, a single incident may still involve other unlawful conduct, such as discrimination, sexual harassment or threats.
Similarly, reasonable management action carried out in a reasonable manner is not workplace bullying. Employers can legitimately manage performance, allocate work and address workplace issues. The key is whether the action itself, and the way it is carried out, are reasonable.
What Should You Do If You Are Experiencing Workplace Bullying?
If unreasonable behaviour continues, it is important to take it seriously rather than waiting until it has significantly affected your health or wellbeing.
1. Keep Records and Preserve Evidence
Record incidents as soon as possible, including:
- The date, time and location.
- What was said or done, as specifically as possible.
- Who was present or may have witnessed the incident.
- How the incident affected your work or wellbeing.
Keep relevant work emails, messages, work instructions and responses from your employer. Preserve the surrounding context wherever possible, rather than relying solely on isolated screenshots.
Be careful not to access confidential information you are not authorised to access or remove company documents improperly. Secret recordings may also raise legal issues, so seek advice before making recordings.
2. Consider Making a Formal Complaint to HR
If the behaviour continues, consider submitting a formal written complaint to HR or your employer’s designated complaints channel. Clearly outline what happened, when it occurred, any supporting evidence and what action you would like the employer to take. Even if the other person denies the allegations during an investigation, your written complaint can help establish when you raised the concerns, what information you provided and how the employer responded.
However, an internal complaint does not guarantee that your employer will find the allegations substantiated or take the action you expect. If you are concerned about retaliation, or the person involved is responsible for the problem, consider obtaining independent legal advice before deciding how to proceed.
3. Avoid Retaliating in Anger
It is understandable to feel angry, frustrated or upset when you are treated unfairly at work. However, responding with insults, threats or emotionally charged messages may escalate the situation and complicate any subsequent investigation.
Where possible, remain calm and professional. Respond to unreasonable requests objectively, keep a record of inappropriate conduct and use appropriate workplace channels to raise your concerns.
You should not have to tolerate ongoing bullying, but responding strategically is often more helpful than reacting impulsively. Keeping accurate records, preserving evidence and understanding your options can help protect your position.
4. Understand Your Legal Options Early
If the bullying continues, your employer fails to address it, or your health is being affected, consider seeking assistance from a union, the relevant regulatory authority or an employment lawyer. Understanding your options early can help you assess the potential consequences before making significant decisions, such as resigning or commencing legal proceedings.
What Legal Options Are Available for Workplace Bullying in Australia?
Depending on the circumstances, you may wish to consider one or more of the following options.
| Legal option | What it may involve |
|---|---|
| Internal workplace complaint | Asking your employer to investigate and address the behaviour. |
| Fair Work Commission stop bullying order | Seeking an order to prevent further bullying, if the statutory requirements are met. |
| State or territory WHS regulator | Raising concerns about workplace health and safety or the management of psychosocial risks. |
| Discrimination complaint | Exploring the relevant complaint process if the conduct involves unlawful discrimination or other prohibited behaviour. |
| General protections | Assessing whether you have experienced unlawful adverse action for exercising a workplace right or for another protected reason. |
| Unfair dismissal or constructive dismissal | Assessing your options if you have been dismissed or believe your employer’s conduct forced you to resign, subject to the applicable legal requirements. |
| Workers compensation | Exploring potential entitlements if you have suffered a work-related psychological or physical injury that meets the relevant legal criteria. |
Not every incident of workplace bullying will qualify for every option. Eligibility, evidence requirements and available remedies vary depending on the circumstances.
Why Should You Understand Your Options Before Resigning?
The Fair Work Commission can make stop bullying orders in certain circumstances. These orders are designed to prevent further bullying, rather than provide financial compensation.
Applicants generally need to be working at the relevant workplace, or have the necessary ongoing connection with it, and there must be a risk that the bullying will continue. If you have already left the workplace, this option will generally no longer be available, although other legal remedies may remain open to you.
If you have been dismissed or believe you were forced to resign because of your employer’s conduct, you may also need to consider general protections or unfair dismissal laws. Whether a resignation amounts to constructive dismissal depends on the specific facts and applicable legal tests.
Strict time limits may apply. Applications involving dismissal generally need to be lodged within 21 days after the dismissal takes effect.
If you are considering resigning, it is worth obtaining advice about your legal position before making a decision. However, if remaining at work poses a risk to your safety or health, prioritise your immediate wellbeing and seek appropriate support.
Workplace Bullying and Psychosocial Safety
Workplace bullying can also raise workplace health and safety issues.
Across Australia, the work health and safety laws of each state and territory generally require relevant duty holders to identify and manage psychosocial hazards. These may include bullying, harassment, unreasonable job demands and inadequate workplace support. The specific requirements vary between jurisdictions.
Employers must eliminate relevant risks so far as is reasonably practicable or, where elimination is not reasonably practicable, minimise those risks in accordance with their legal obligations.
This means employers should do more than simply have an anti-bullying policy on paper. They must take appropriate steps to manage workplace risks in practice.
If your employer has failed to address workplace health and safety concerns, you may consider contacting the work health and safety regulator in your state or territory (for example, SafeWork NSW or WorkSafe Victoria).
Frequently Asked Questions About Workplace Bullying
Keep copies of your complaint, the employer’s responses and records of any subsequent incidents. You may follow up with HR and consider seeking assistance from your state or territory WHS regulator, your union or an employment lawyer.
HR generally manages the employer’s internal processes and should not be assumed to act as your independent legal representative.
Yes. Workplace bullying is not limited to conduct by managers or supervisors. Depending on the circumstances, conduct by colleagues or other people at work may also fall within the relevant legal framework.
The employer’s responsibilities and the options available to you will depend on the facts and applicable law.
Being a casual employee or being on probation does not automatically exclude you from all workplace protections under Australian law. However, different legal claims have different eligibility requirements. Your options should be assessed considering your employment circumstances and the nature of the conduct.
No. An internal complaint may be a useful step, but it is not a prerequisite for every legal pathway. If you are concerned about retaliation, are considering resigning or have been dismissed, seek advice early. Do not assume that waiting for an internal investigation will extend a legal deadline.
Seeking Legal Advice About Workplace Bullying in Australia
You do not have to navigate workplace bullying or make important employment decisions without understanding your legal options.
The Employment Law team at Brightstone Legal can help you understand your rights, assess potential legal pathways and obtain advice on workplace bullying complaints, disputes with employers and related employment law matters.
If you are experiencing workplace bullying, particularly if you are considering resigning, your employer has failed to address your complaint, or you are concerned about adverse treatment after raising concerns, contact Brightstone Legal to discuss your circumstances and explore the options available to you.
Disclaimer: This article provides a general summary based on the law and official guidance current as at the date of publication. It is not legal advice and should not be relied on as such. The availability of any legal option or remedy depends on the specific facts and circumstances of each matter, and requirements may vary between states and territories.
Resources:
- Fair Work Commission: 工作场所霸凌；
- Fair Work Commission: Application deadlines
- Safe Work Australia: Dealing with workplace bullying, a worker’s guide
