What is bullying in a legal context?
WorkSafe Victoria defines bullying as persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety.
The Fair Work Act states that bullying will have occurred if an individual or group of individuals repeatedly behaves unreasonably towards the worker or a group of workers which the worker is a member and that behaviour creates a risk to health and safety. Unreasonable behaviour includes victimising, humiliating, intimidating or threatening.
What are your legal options if you are being bullied?
The legal options available entirely depend on the effect that the bullying is having on you. If you are being bullied it is important that you attend your doctor and discuss with them the specific instances of bullying and the impact, if any, that it is having on your mental or physical health.
Psychiatric conditions are generally something which occur over a period of time and often they are not understood or identified until they have taken a strong hold. Discussing matters with your doctor early is critical, even if you yourself believe you are ‘ok’. You may not realise it at the time but it may be the discussion that enables you to take control.
Once you have spoken with a health professional you will then be able to identify the outcome that you are seeking which will then identify the relevant legal avenues available to you.
The remedies available are generally compensation and/or a legal solution to stop the offending behaviour.
Compensatory remedies include:
- Compensation for the hurt, distress and humiliation
- Compensation for lost earnings / future earnings
- Compensation for incurred medical expenses
Legal remedies to stop the bullying include:
- A stop bullying order from Fair Work
- A declaration that a term of an award has been breached and must be remedied
- An injunction preventing something from being done
- An order requiring your employer to return you to work performing alternative duties
If you have suffered an injury it is unnecessary to establish that you have been bullied
The WorkCover scheme is beneficial legislation which seeks to compensate employees who have suffered an injury at work irrespective of fault. In this sense, it operates very similarly to comprehensive car insurance.
In order to receive the benefits of WorkCover (a weekly income, medical expenses and potential lump sum compensation), all that is needed to be established is that the injury materially relates to your employment. In other words – it is a no fault system in which the fault or otherwise of your employer is irrelevant.
It is for this reason that we advise workers not to write the words ‘bullying’ on a WorkCover claim form as this introduces a requirement to prove fault which would otherwise not be required to proven. The purpose of WorkCover is to protect people who have suffered injuries and it is not a relevant consideration as to whether or not it’s the fault of your employer.
If you have been bullied at work and you are wanting to make a WorkCover claim, indicate the specific behaviours/instances of bullying that have occurred and avoid using the term ‘bullying’.
A WorkCover claim form is made by completing the claim (this can be accessed at the Post Office or online at https://www.worksafe.vic.gov.au/resources/workers-injury-claim-form.) Ordinarily psychiatric injuries occur over a period of time. The claim form requests that you indicate a specific date of injury; we recommend that you cross this out and instead indicate the general time period over which the psychiatric injury arose. A WorkCover claim form, if seeking payment in lieu of earnings, must be accompanied by a Certificate of Capacity. This is obtained from your GP. The first certificate is for a period of 13 days and thereafter each certificate must not exceed 28 days.
What if you do not want to make a WorkCover claim
You can make a claim pursuant to the Equal Opportunity Act. You generally only have one year from the date of the offending conduct to pursue such a claim. The Equal Opportunity Act provides a wide range of remedies, both compensatory and non-compensatory. In order to be successful in claim you must be able to show that you have been victimised or discriminated against because of a protected attribute. Protected attributes include:
- marital status
- participation in employment activities
- sexual orientation
- involvement in lawful industrial activity
- parental status
- political beliefs
It should be noted that a claim pursuant to the Equal Opportunity Act can be made even if you have an accepted WorkCover claim and generally, any compensation received, will not impact the ongoing receipt of your WorkCover benefits.
Alternatively you may wish to bring a claim pursuant to the Fair Work Act. There are a broad range of remedies available which include, but are not limited to:
- A general protections claim. If your employment has come to an end, the claim must be made within 21 days of the offending conduct. If your employment is ongoing there are arguably six years in which you have to pursue the claim. In order to be successful in a general protections claim you must be able to show that you have been discriminated against or treated differently from others (adverse action) because of a protected attribute or workplace right (very similar to those listed in the Equal Opportunity Act). A general protections claim can provide compensation for your lost earnings and also compensation for your hurt, distress and humiliation.
- Dependent on the dispute resolution clause in the Award which governs your employment, it is likely that you can bring a claim to Fair Work in respect of a dispute arising out of the non-compliance with your Award. Examples of this include but are not limited to, requiring you to work hours outside the agreed terms of your employment, failing to follow redeployment procedures and not providing opportunities for retraining.
It should be noted that pursuing a claim pursuant to the Fair Work Act, when you have an accepted WorkCover claim, can have a significant impact on your ongoing entitlements to benefits from WorkCover.
Various other legal remedies are available in respect of sexual harassment, discrimination and/or underpayment of wages. This article has only identified the most common avenues for relief from bullying by Victorian employees. What should be noted is that generally Commonwealth legislation has a year time limit from the offending conduct and after this time your rights to pursue a claim cease. If you are seeking to make an underpayment claim, you generally only have six year from the date of the underpayment to pursue such a claim.
Obtaining Legal Help
It is important that at an early stage you seek advice from a lawyer. A lawyer can identify the most appropriate legal avenue for you and assist you through the legal process. At Rubicon Compensation Lawyers we are happy to meet with you and provide you advice at an early stage. We act on a No Win No Fee basis.