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Bullying, Harassment and Discrimination

No employee should have to experience bullying, harassment or discrimination in the workplace. However, for those who unfortunately do, there are a number of laws you can utilise to put an end to, or seek redress for, such conduct.

Bullying, harassment and discrimination each have distinct legal meanings.

Under the Fair Work Act 2009 (Cth), bullying is defined as repeated unreasonable behaviour towards a person at work that creates a risk to health and safety. However, it does not include reasonable management action carried out in a reasonable manner.

If you believe that you have been bullied at work, you may apply to the Fair Work Commission for a “stop-bullying order”. If satisfied that bullying has occurred and there is a risk that it will continue, the Fair Work Commission has the power to make any order it considers appropriate to prevent a worker from being bullied further.

However, as the purpose of the Fair Work Commission’s anti-bullying regime is preventive rather than punitive, it does not have the power to award financial compensation or impose a pecuniary penalty.*

*Employees who suffer a workplace injury as the result of bullying at work may have entitlements under workers compensation legislation. For further information, refer to the WorkCover section of our website.

Discrimination differs from bullying in that it generally refers to unfavourable treatment because of a protected attribute. There are a number of different Victorian and Commonwealth Acts which prohibit discrimination in relation to employment, and the precise elements needed to prove discrimination will vary depending on which Act is utilised.

For example, the Equal Opportunity Act 2010 (Vic) prohibits discrimination on the basis of:

  • age;
  • breastfeeding;
  • employment activity;
  • gender identity;
  • disability;
  • industrial activity;
  • lawful sexual activity;
  • marital status;
  • parental status or status as a carer;
  • physical features;
  • political belief or activity;
  • pregnancy;
  • race;
  • religious belief or activity;
  • sex;
  • sexual orientation;
  • an expunged homosexual conviction; and
  • personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.

The process involved in pursuing a discrimination claim and the available outcomes will vary depending on:

  • which Act is utilised (eg the Equal Opportunity Act 2010 (Vic), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) or the Fair Work Act 2009 (Cth)); and
  • which forum the claim is lodged in (eg the Victorian Equal Opportunity and Human Rights Commission, the Victorian Civil and Administrative Tribunal, the Australian Human Rights Commission or the Fair Work Commission).

Finally, harassment can refer to sexual harassment (which is unlawful under the Equal Opportunity Act 2010 (Vic) and the Sex Discrimination Act 1984 (Cth)) or disability harassment (which is unlawful under the Disability Discrimination Act 1992 (Cth)).

If you believe that you have been bullied, discriminated against or harassed, seek legal advice to explore your options.

Call 1300 366 441 or find us at an office near you for advice on any employment, industrial or discrimination matter.

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