Workplace bullying and your obligations as an Australian employer

Every Australian employer must prevent workplace bullying, whether the business employs two people or two thousand. The obligation comes from two directions at once. Work health and safety (WHS) law requires you to protect workers from psychological harm, and the anti-bullying scheme in the Fair Work Act 2009 (Cth) lets a worker ask the Fair Work Commission (FWC) to order you to stop behaviour that is bullying.

This guide sets out who those duties apply to, what conduct crosses the line into bullying, the steps you must take to prevent it, how to respond lawfully when a complaint is made, and what happens if you get it wrong.

Who the duties apply to and what brings you into scope

Both frameworks reach further than many owners assume, and the thresholds differ between them.

The WHS duty applies to every person conducting a business or undertaking (PCBU). There is no size threshold: a sole trader with one casual worker carries the same duty as a national retailer. Under s 19 of the Work Health and Safety Act 2011 (Cth), a PCBU must ensure, so far as is reasonably practicable, the health and safety of workers while they are at work, and the Act defines health to include psychological health. Equivalent duties apply under state and territory WHS laws.

The FWC anti-bullying jurisdiction applies to workers in a constitutionally covered business, which covers most proprietary companies, the Commonwealth and its authorities, and bodies corporate incorporated in a territory. The definition of worker is deliberately broad. It includes employees, contractors and subcontractors, outworkers, apprentices and trainees, students gaining work experience, and volunteers. Bullying can be raised by someone who is not on your payroll at all.

The related employment law thresholds also matter, because bullying matters so often end in dismissal or resignation:

• Unfair dismissal: an employee is protected only after completing the minimum employment period, which is six months, or twelve months for a small business employer. Applications must be lodged within 21 days of the dismissal taking effect.
• General protections: an application alleging adverse action connected to a dismissal must be made within 21 days.
• Anti-bullying applications: there is no fixed time limit for a stop bullying application, which is one reason to treat early complaints seriously rather than wait for them to escalate.

Whether a particular worker can apply to the FWC turns on the form of your business and where it operates. If you are unsure whether someone is covered, a lawyer can confirm it quickly, and that answer changes which forum you would defend.

Know the line: what the law counts as bullying

Under s 789FD of the Fair Work Act 2009 (Cth), a worker is bullied at work if, while at work in a constitutionally covered business, an individual or a group repeatedly behaves unreasonably towards the worker or a group of workers, and that behaviour creates a risk to health and safety. Three elements carry the weight:

• Repeated: the behaviour must happen more than once, or form a pattern. A single outburst is generally not bullying.
• Unreasonable: judged objectively, the behaviour is not a legitimate exercise of management. Persistent belittling, humiliation, aggression, exclusion, spreading malicious rumours, and unreasonable or impossible work demands are common examples.
• Risk to health and safety: the behaviour must create a risk of psychological or physical harm, not merely be unpleasant. It does not matter whether the bully intended harm.

The behaviour can come from a manager, a co-worker, a contractor, a client, or anyone else at work. It can occur face to face, in writing, or online, and conduct connected to work can count even if it happens outside ordinary hours in some circumstances.

Reasonable management action carried out in a reasonable manner is not bullying: s 789FD(2) of the Fair Work Act says so expressly. Genuine performance feedback, lawful directions about rostering or duties, and properly run disciplinary processes sit on the safe side of the line, provided they are fair, proportionate and delivered respectfully. A single incident that is not bullying may still be misconduct, a WHS concern, or a breach of discrimination or sexual harassment laws, so it cannot simply be ignored.

Your primary duty: prevent psychosocial harm

The core WHS obligation is proactive, not reactive. You must identify where work design, workloads, role clarity or workplace interactions could cause psychological harm, and eliminate or minimise those risks so far as is reasonably practicable.

Bullying sits inside the broader category of psychosocial hazards: hazards arising from the design or management of work, the work environment, plant, or workplace interactions and behaviours that may cause psychological harm. WHS regulations in most states and territories now deal with psychosocial risks expressly. In New South Wales, for example, the Work Health and Safety Regulation 2025 (NSW) defines psychosocial hazards and requires the PCBU to manage psychosocial risks through the standard risk management process.

Managing the risk looks like this in practice:

• Assess: look for unreasonable workloads, role ambiguity, poor communication, isolated roles, and known conflict between individuals or teams.
• Control: design the work so the risk is removed or reduced: clear job descriptions, achievable deadlines, fair rostering, and enforced behavioural standards.
• Equip: train managers in giving feedback and handling conflict, and give every worker a reporting pathway they trust.
• Consult: consult workers and health and safety representatives, so far as is reasonably practicable, about matters that affect their health and safety.
• Review: revisit your controls after complaints, incidents, restructures or changes in staffing.

Prevention is also a documentation exercise. A plain English anti-bullying policy, a code of conduct, and records of training and risk assessments show a regulator or the FWC that the duty was taken seriously. The businesses that struggle are rarely the ones with no policy; they are the ones whose day to day practice drifted from the policy.

Responding when bullying is raised: the procedural duties

When a complaint lands, you owe duties of process as well as safety. Acting quickly and fairly is both a legal requirement and your best defence to later claims:

• Triage and immediate safety: Assess whether anyone is at immediate risk of harm. Interim steps can include separating the parties, changing reporting lines, or short term leave. In serious cases you may stand a worker down pending investigation, but only in a way that preserves procedural fairness and only for as long as the risk requires.
• Choose a proportionate process: Not every complaint needs a formal investigation. Low level or relationship issues can be resolved through a facilitated conversation or mediation, provided the allegations are not serious, disputed or recurring. A formal investigation is the right response where allegations are serious, contested, or part of a pattern.
• Run a fair investigation: The essentials are:
  • an investigator who is, and appears to be, impartial;
  • clear written allegations and a genuine opportunity for the respondent to respond;
  • evidence gathered and recorded carefully, including interviews, documents and messages;
  • findings made on the balance of probabilities against your policy and standards;
  • confidentiality on a need to know basis, and regular check ins with the complainant about their safety and support.
• Do not punish the complaint: Section 340 of the Fair Work Act 2009 (Cth) prohibits adverse action because a person has exercised a workplace right, and raising a bullying concern can be a workplace right. Demoting, sidelining or dismissing a worker for complaining is itself a separate claim, usually with compensation attached, and it destroys the credibility of everything else you did.
• Follow through: Where allegations are substantiated, outcomes can include training, counselling, performance management, warnings or, in serious cases, termination, each with procedural fairness applied. Where they are not, consider whether work design, team dynamics or communication patterns still need attention. In either case, follow up to confirm the behaviour has stopped and the workplace is safe, and support the reintegration of the people involved.

What happens if you get it wrong

Failing to prevent or respond to bullying exposes the business to several overlapping consequences:

• Stop bullying orders: A worker who reasonably believes they have been bullied can apply to the FWC. If the FWC is satisfied the worker has been bullied and there is a risk it will continue, it may make any order it considers appropriate to prevent it, other than an order requiring payment of money. Orders can change reporting lines, require training, or direct that particular individuals have no contact. The FWC cannot award compensation in this jurisdiction, but the process is disruptive, and the orders shape how you run the workplace.
• Workers compensation: Psychological injury is a recognised category of claim under state and territory workers compensation schemes, and bullying is a common trigger. Claims affect your premium, your excess and your claims history for years.
• General protections: Adverse action because a worker complained can be pursued as a general protections claim with compensation available, and dismissal related applications carry a 21 day deadline.
• Unfair dismissal: If you dismiss someone involved in a bullying matter and mishandle the process, they can claim unfair dismissal within 21 days, with reinstatement or compensation available if the dismissal was harsh, unjust or unreasonable.
• WHS enforcement: Regulators can issue improvement notices and prohibition notices, and can prosecute breaches of the primary duty, including failures to manage psychosocial risks. Maximum penalties are indexed and differ between jurisdictions, and the most serious offences carry fines that are substantial for corporations.
• The quieter costs: Claims, notices and orders are public. Recruitment, retention, insurer behaviour and customer perception all respond to a workplace known to tolerate bullying.

A practical compliance checklist

Keep these practices current and documented:

• Policy: keep a plain English anti-bullying policy and code of conduct with a named reporting pathway.
• Training: induct new starters, and refresh managers regularly on what bullying is, what it is not, and how to respond to concerns.
• Risk assessment: treat psychosocial risks like any other hazard: assess workloads, role clarity and workplace interactions.
• Reporting: offer more than one way to raise a concern, and make clear there will be no victimisation for speaking up.
• Records: document risk assessments, training, complaints, investigation steps and outcomes. Undocumented decisions are undefendable decisions.
• Process: apply the informal and formal pathways consistently, and give procedural fairness at every disciplinary step.

Where a lawyer earns their fee

Most prevention is internal: policies, training and management practice. But several moments justify professional input:

• when a complaint names a senior manager or director, because the investigation must be, and appear, independent;
• before you stand someone down, issue a show cause letter or terminate, because those steps carry unfair dismissal and general protections risk;
• when a stop bullying application or a workers compensation claim has been lodged, because the FWC's processes and scheme deadlines are strict;
• when conduct crosses into discrimination or sexual harassment territory, where separate laws and regulators apply.

A lawyer can review your policy suite, pressure test your investigation plan, and run the procedural steps so your decisions survive scrutiny.

The reasonableness test is where bullying claims are won and lost

Of all the duties in this article, the one most often missed is not the policy. It is the ability to show that management action was reasonable and carried out reasonably. The FWC looks behind labels. A written warning can be reasonable management action, or it can be bullying, depending on whether it was fair, proportionate and delivered with respect, and on whether you can document that it was.

Remember that the test for bullying does not ask whether you intended harm. It asks whether behaviour, repeated over time, created a risk to health and safety. So the first action this week is not to rewrite your policy. It is to look at how your managers give feedback and manage performance, and to make sure there is a record showing the action was reasonable and the manner was fair. That record is what separates a defensible workplace from a costly one.