All about obtaining compensation for workplace bullying in Victoria.

Workplace bullying is behaviour that is repeated and unreasonable, and is directed towards a worker or a group of workers, and creates a risk to health and safety.

Workplace bullying can occur through verbal, psychological, physical, social and indirect forms of behaviour.

Common examples of bullying in the workplace ca include (but are not limited to):

• Belittling or humiliating comments
• Hurtful remarks or attacks
• Making fun of your work or you as a person
• Giving you pointless tasks that have nothing to do with your job
• Pushing shoving or grabbing someone
• Abusive or offensive language
• Swearing or yelling at someone
• Threatening someone
• Practical jokes or initiation
• Unjustified criticism or complaints
• Withholding information that might be important for performance in the workplace
• Setting unreasonable timelines or constantly changing deadlines
• Abusive or offensive emails or other types of correspondence
• Body language that might be threatening
• Spreading misinformation rumours
• Deliberately inconveniencing someone by changing work arrangements or rosters
• Unreasonably isolating and employee from other employees
• The unequal application of work benefits or rules
• Excluding someone unreasonably from accessing training

Not all behaviour or actions that a person deems inappropriate fall under the banner of workplace bullying. 

For example, while the following may be unpleasant for the employee involved, they likely do not constitute workplace bullying.

• Fair rostering and allocation of work hours and work duties
• Restructuring organisational change
• Taking disciplinary action against an employee, which may involve warning them for conduct or terminating them if warranted
• Performance managing an employee if warranted
• Transferring employee to another area or role due to operational reasons
• Informing an employee about unsatisfactory work performance in a reasonable and constructive way
• Not selecting a person for a promotion where a proper process has been followed

What is the impact of bullying in the workplace?

Bullying in the workplace can have flow on effects and can disrupt the entire organisation.

Some of the more common impacts of workplace bullying are;

• Impacting relationships with others
• Stress
• Anxiety
• Panic attacks
• Sleep disturbance
• Reduced work performance
• Feelings of isolation

If you are bullied at work what should you do?

There are a number of things that you can do to hopefully manage and better deal with bullying.

The first thing is to, If appropriate, speak to your manager and ask them for assistance and or advice. In many cases, this will be enough to put an end to any inappropriate behaviour.

If required, you should seek medical assistance. A good first port of call is to visit your general practitioner and make sure that you report any symptoms to them like anxiety or stress or depression.

Ensure to explain to your doctor exactly what’s going on in the workplace.

If you wish to pursue a WorkCover matter down the track, then the notes from your general practitioner may be important and having the claim excepted.

Keep records and document the bullying. Make a note of what happened what might’ve been said. Also make a note of any people that may have witnessed the bullying.

What compensation avenues are open to me if I’ve been bullied in the workplace?

WorkCover

If you have been subjected to bullying in the workplace, one option is to pursue a WorkCover claim.

In order to make a WorkCover claim, you need to show that you are suffering from a work related medical condition.

For example, this might be anxiety or depression or post-traumatic stress disorder or something else.

For this reason, you should see your doctor so they can provide medical treatment to you but also provide an opinion as to a diagnosis. You need to have a diagnosable condition to have your claim accepted and the opinion of any doctors or other health practitioners that have been treating you will be important in establishing this.

Any part of the condition that is not related to work, for example, financial problems or health issues, cannot be taken into account.

Further, in addition to having a medical condition, your employment must be connected to Victoria in some way.

This means that for example you normally work in your employment in Victoria or your employers main place of business in Victoria.

In order to pursue a claim via WorkCover for workplace bullying, you need to complete and lodge a WorkCover claim form.

You’ll see under section 2 – incident and workers injury details, form asked you to list what happened and how you were injured.

Here, you should do your best to list the main issues that you believe have contributed to your medical condition. You should exclude those that are not related to work.

Don’t stress too much about trying to fit everything in here.

You will have the opportunity to explain things further once your claim has been lodged. Just list the main issues that you believe are the most relevant ones.

When listing these issues, keep in mind the definition of workplace bullying as referred to above.

Do you think that a person, looking objectively at the conduct, would consider it workplace bullying?

Once the form has been completed, it needs to be provided to your employer.

There is a section on the form that they are required to complete. Once done, they need to send it off to the insurance company for determination.

The insurance company will then process the claim and they have 28 days from the date the claim is received to make a decision to either reject or accept.

During that period, it is more likely than not that they will arrange an appointment for you to be assessed by a doctor. This doctor will then form an opinion as to any medical diagnosis.

Also common in matters where workplace bullying is alleged, a circumstance investigation report report may be commissioned.

This involves the insurance company organising a person to speak to relevant people including yourself and then to provide and produce a report with findings as to the behaviour.

If your WorkCover claim is accepted

You’ll be entitled to the payment of medical and like expenses and weekly payments if you have claimed them (because your ability to work to the same extent that you were working previously is impacted).

In some cases, you may be able to pursue to lump sum claims. The first is called an impairment benefit and the second is called a common-law claim for damages.

What if my claim is rejected?

One of the most common reasons why workplace bullying WorkCover claims are rejected is due to what’s called the reasonable management action defence.

The basis for this is that the law says that management action that is considered reasonable, that is carried out in a reasonable manner, is not bullying.

Refer to some of the examples above where this was discussed.

If your WorkCover claim is rejected citing the reasonable management action defence, what the insurer is saying is that you may have a diagnosable medical condition and you may be quite Well because of it.

However, if that medical condition arose because of behaviour in the workplace that was reasonable, then you are not entitled to have your WorkCover claim accepted and obtain benefits under WorkCover.

Examples of reasonable management action carried out in a reasonable manner, might include;

• A manager providing reasonable instructions to an employee
• Transferring a worker for operational reasons
• Not selecting a particular worker for a promotion where a reasonable process has been followed
• Providing constructive feedback to employee in a reasonable manner to help them improve their behaviour.

People involved will often see things differently and this is the reason why many WorkCover claims relating to workplace bullying I rejected and then contested.

Fair work application for an order to stop bullying

This is not a compensation option but it is something you can pursue to put a stop to bullying.

If you believe that you are being bullied in the workplace and you feel like you do not have any other options to stop the bullying (for example you’ve reported it to your manager and the bullying is continuing) then able to make an application to the Fair Work Commission (FWC) for an application for an order to stop bullying.

You can visit the FWC website and you’ll see that they have the forms there that you need to complete. There is also an online lodgement service.

They can make an order if there is a risk that you will be continue to be bullied at work A person or group of people.

So, if you are no longer with the employer where the bullying was occurring or where there is no risk of the bullying behaviour continuing, then the fair work commission cannot make an order.

Once the form has been lodged, the FWC will then serve a copy of the application on the other parties in the matter. So this will include serving the form on your employer, the other personal people that are named in your application.

Human rights commission application

If you believe that you have been discriminated against at work based on an attribute then it is possible for you to make an application of the Australian Human Rights Commission. You can telephone them on 1300 891 848.