For employers
An employee has complained of bullying or harassment: what to do, and when to get advice
A complaint of bullying or harassment lands on an employer twice: as a people problem to resolve, and as a legal duty to act. Work health and safety law treats bullying and harassment as hazards to be managed, sexual harassment carries a positive duty to prevent it, and the Fair Work Commission can be asked for orders while the person is still employed. How the first two weeks are handled decides most of what follows. This page sets out that handling, the Commission process from the employer's side, and when to bring in a lawyer.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| Employer's response to a stop-bullying application (Form F73) | By the date the Commission sets; the Commission must start dealing with the application within 14 days | Fair Work Commission, respond to a bullying claim |
| Sexual harassment dispute application by the worker | The Commission may dismiss an application made more than 24 months after the last alleged contravention | Fair Work Act s 527G |
| If the complainant is dismissed or penalised after complaining | 21 days for a general protections application | Fair Work Act s 366 |
Do you need a lawyer for this?
Advice usually pays for itself when
- The complaint involves sexual harassment, or conduct by an owner, director or senior manager.
- A Commission application has arrived, or the complainant has mentioned a claim, a union or a lawyer.
- The complainant has gone on stress leave or lodged a workers compensation claim, which brings safety regulators and insurers into the picture.
- The alleged behaviour is by a valued employee and you are tempted to manage it informally, which is where employers get hurt.
The free route is usually enough when
- A low-level interpersonal conflict with no safety dimension, where both people want it resolved and a facilitated conversation is the obvious step.
- You have an experienced HR function and a clear policy, and the matter is contained.
What must an employer do when a complaint is made?
Take it seriously, in writing, the same day. Acknowledge the complaint, explain what will happen next, and ask what the complainant needs now: a change of shifts, a different reporting line, time off. Consider interim measures that protect the complainant without punishing the respondent before anything is found. Do not tell the complainant to sort it out themselves, and do not tell the respondent informally before deciding how the matter will be handled. Record everything. Work health and safety law requires employers to manage psychosocial hazards, and bullying and harassment are exactly that, so a complaint is also a safety report and should be treated with the same seriousness as a physical injury.
How should it be investigated?
Proportionately. Not every complaint needs a formal investigation, but every serious one does, and sexual harassment complaints almost always do. The elements of a fair investigation are the same as for misconduct: allegations in writing, a chance to respond, a support person, witnesses interviewed, findings on the balance of probabilities, and a decision by someone not involved. Where the respondent is senior or the matter is serious, an external investigator protects the outcome and can attract privilege if engaged through a lawyer. The workplace investigation guide on this site covers the process in detail. Keep the complainant informed of progress even where the details cannot be shared.
What happens if the employee goes to the Commission?
A worker who is still employed can apply for an order to stop bullying or an order to stop sexual harassment. The Commission must start dealing with a stop-bullying application within 14 days, and it will send the application to the employer and to the person named, asking each to respond, the employer on Form F73. The Commission looks for repeated unreasonable behaviour that creates a risk to health and safety, and for an ongoing risk, and it usually convenes a conference before any hearing. Orders can require behaviour to stop, policies to change and monitoring to occur. They do not award compensation. A worker can separately bring a sexual harassment dispute seeking compensation, which goes through conciliation and can continue to court.
What is reasonable management action?
Bullying under the Act does not include reasonable management action carried out in a reasonable manner. Performance management, a reasonable direction, or a fair disciplinary process is not bullying even where the employee experiences it as such. The qualifier is the word reasonable, twice. An unreasonable process, or a reasonable one carried out in a humiliating way, loses the protection. Employers defending a bullying complaint about a manager's conduct should be able to show what the management action was, why it was needed, and how it was carried out. The same record that makes a dismissal defensible makes a bullying complaint about the process answerable.
When does a lawyer pay for itself?
When the complaint is about sexual harassment, because the positive duty, the potential compensation claim and the reputational stakes all sit together. When the respondent is senior. When a Commission application or a workers compensation claim has been made. When interim measures involve moving or standing down anyone, since done badly they generate a second complaint. And when the complainant has been dismissed or has resigned since complaining, which raises general protections. Liquid Employment Lawyers is FairWork Mate's paid legal partner for employers. It is an Australian employment law firm, not free government help, and it explains scope and fees before any work. A contained conflict handled early rarely needs one.
What is the free route for employers?
The Fair Work Ombudsman on 13 13 94 explains employer obligations, free, and the Commission's own pages set out the stop-bullying and sexual harassment processes and forms. FairWork Mate's psychosocial hazard checker covers the safety duty, the workplace investigation rights tool shows the process from the employee's side, and the workplace bullying guide explains what the Commission looks for. Free general information, not legal advice. FairWork Mate is not affiliated with the Fair Work Commission or the Ombudsman.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
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Common questions
Can we stand down the person accused while we investigate?
You can direct them to stay away from the workplace on full pay where the allegations are serious enough to justify it. Stopping their pay is generally not permitted and creates an underpayment claim. Communicate it as a neutral step, not a finding.
The complainant wants it kept confidential and does not want an investigation. Do we still have to act?
The safety duty is the employer's, not the complainant's, and serious allegations usually cannot be left unexamined. You can respect the complainant's wishes about how it is handled while still taking reasonable steps, and a lawyer can help design that balance.
Does the Commission award compensation for bullying?
No. Stop-bullying orders are about preventing future conduct. Compensation may be sought through a sexual harassment dispute, a general protections claim or workers compensation, each with its own rules.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring is free and there is no obligation. The Fair Work Ombudsman on 13 13 94 provides free information to employers.
Official sources
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Related legal help
A flawed investigation is the most common reason a dismissal fails. Allegations in writing, a chance to respond, a support person, an uninvolved decision-maker.
Workplace bullying stop order: what it can and cannot do, and whether you need a lawyerA stop bullying order needs an ongoing risk at work and awards no compensation. What the Commission looks at, the free route, and when a lawyer helps.
Sexual harassment claim: your options, the 24-month rule and whether you need a lawyerSexual harassment disputes lodged over 24 months after the last incident can be dismissed. Stop orders vs compensation, the free route, when to get a lawyer.
You have received a general protections claim: the reverse onus, and what to do firstThe employer must prove the protected reason was not why it acted, and there is no compensation cap. What the response needs and when to get advice.