Workplace Bullying: Employer Obligations & How to Handle Complaints
Australian employer guide to workplace bullying obligations. Covers the legal definition, duty of care, investigation processes, FWC stop bullying orders, new psychosocial hazard WHS laws, and how to create an effective complaint procedure.
Definition of bullying vs harassment: know the difference
Workplace bullying and harassment are related but legally distinct concepts, and employers must understand the difference to respond appropriately. Under the Fair Work Act, workplace bullying occurs when a person or group of persons repeatedly behaves unreasonably towards a worker and the behaviour creates a risk to health and safety. The key elements are 'repeated' (a single incident is generally not bullying, though it may be harassment) and 'unreasonable' (behaviour that a reasonable person would consider to be victimising, humiliating, intimidating, or threatening). Examples include aggressive or intimidating conduct, belittling or humiliating comments, spreading malicious rumours, deliberately excluding someone from work activities, setting unreasonable deadlines or workloads designed to cause failure, and making repeated unjustified criticism. Harassment, by contrast, can be a single incident and includes unwelcome conduct based on protected attributes (sex, race, disability, age, etc.) under anti-discrimination legislation. Sexual harassment has its own specific legal framework under the Sex Discrimination Act. Reasonable management action carried out in a reasonable way — such as performance management, lawful workplace directions, or restructuring decisions — is not bullying, even if the employee finds it distressing.
Employer duty of care: what the law requires
Employers have a positive duty to prevent workplace bullying and to respond to it when it occurs. This obligation comes from multiple sources. Under Work Health and Safety (WHS) laws, employers must provide a safe workplace free from risks to psychological as well as physical health — bullying is a recognised psychosocial hazard. Under the general protections provisions of the Fair Work Act, employers must not take adverse action against employees who make workplace complaints. Under anti-discrimination legislation, employers are vicariously liable for harassment by their employees unless they can show they took all reasonable steps to prevent it. In practical terms, this means employers must: have a written anti-bullying and harassment policy, ensure all employees are aware of the policy, provide training on acceptable workplace behaviour, establish clear complaint and investigation procedures, act promptly when complaints are raised, support all parties during an investigation, and take appropriate corrective action when bullying is substantiated. Failure to meet these obligations exposes the business to WHS prosecution, general protections claims, discrimination claims, workers compensation claims for psychological injury, and FWC stop bullying orders.
Investigation process: how to handle a complaint properly
When an employee reports bullying, the employer must investigate promptly and thoroughly — failure to do so can itself constitute a breach of duty of care. The investigation process should follow these steps: First, receive the complaint and acknowledge it in writing. Assure the complainant that the matter will be taken seriously and that no retaliation will be tolerated. Second, assess the complaint to determine whether it raises allegations of bullying, harassment, or misconduct, and whether interim measures are needed (such as separating the parties). Third, appoint an investigator — this can be an internal HR manager or, for serious allegations, an external investigator. The investigator must be impartial and have no connection to either party. Fourth, interview the complainant in detail and obtain a written statement. Fifth, put the allegations to the respondent and allow them to respond — procedural fairness requires that the respondent knows exactly what is alleged and has a genuine opportunity to respond. Sixth, interview any witnesses. Seventh, assess all evidence and make findings on the balance of probabilities. Eighth, communicate the outcome to both parties. Ninth, implement corrective actions. Tenth, follow up to ensure the behaviour has stopped and there is no retaliation.
FWC stop bullying orders: what they mean for employers
Since 1 January 2014, workers who believe they are being bullied at work can apply to the Fair Work Commission for a 'stop bullying' order under section 789FF of the Fair Work Act. The worker must still be employed by the business at the time of the application (the FWC cannot make an order after employment has ended). If the FWC is satisfied that the worker has been bullied and there is a risk the bullying will continue, it can make any order it considers appropriate to prevent further bullying — except an order for compensation. Common orders include requiring the employer to implement or revise a bullying policy, directing specific individuals to stop certain behaviours, requiring the employer to provide training, requiring changes to work arrangements, and directing the employer to conduct a formal investigation. While the orders do not include monetary penalties, failure to comply with an FWC order is a civil remedy provision carrying penalties of up to $16,500 for individuals and $82,500 for corporations. The existence of a well-documented investigation and response process significantly reduces the risk of an adverse order, as the FWC considers what steps the employer has already taken.
Psychosocial hazard laws: the new WHS requirements
Recent amendments to Work Health and Safety legislation across Australian jurisdictions have explicitly recognised psychosocial hazards — including bullying, harassment, violence, excessive workload, poor support, and lack of role clarity — as workplace hazards that must be managed under the WHS framework. This means employers must now apply the same risk management approach to psychosocial hazards as they do to physical hazards: identify the hazards, assess the risks, implement control measures, and review their effectiveness. Many jurisdictions have adopted or are adopting the model WHS Regulations, which include specific provisions for psychosocial risks (Regulation 55A onwards). Safe Work Australia has published a comprehensive Code of Practice: Managing Psychosocial Hazards at Work, which provides practical guidance. Employers should conduct a psychosocial risk assessment — this can be done through worker surveys, focus groups, review of incident reports and workers compensation claims, and analysis of absenteeism and turnover data. Common control measures include clear policies, training for managers, reasonable workloads, adequate resourcing, supportive leadership practices, and effective complaint mechanisms. WHS regulators can issue improvement notices and prohibition notices for psychosocial hazard failures, and prosecution is possible for serious breaches.
Creating an effective complaint procedure
Every Australian workplace should have a clear, accessible complaint procedure for bullying and harassment. An effective procedure includes these elements: multiple reporting channels (direct manager, HR, senior management, and an external anonymous hotline for larger businesses), so employees are not forced to report to the person who may be bullying them. Clear timeframes — acknowledge complaints within 2 business days and aim to complete investigations within 4-6 weeks. Confidentiality protections — information should be shared only on a need-to-know basis, and all parties should be reminded of confidentiality obligations. Anti-retaliation provisions — explicitly state that adverse action against anyone who makes a complaint, participates in an investigation, or supports a complainant will be treated as serious misconduct. Support for all parties — both the complainant and the respondent should be offered access to Employee Assistance Program (EAP) counselling and may bring a support person to any meeting. Record-keeping — document every step of the process, including dates, participants, evidence gathered, and decisions made. The procedure should be included in the employee handbook, provided to all new employees as part of onboarding, and reviewed annually. Training for managers on how to receive and escalate complaints is critical — many bullying situations escalate because the first person told did not know what to do.
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General information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
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