A Guide To Workplace Bullying, Harassment And Discrimination

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As an employer, you have an obligation to ensure everyone in your workplace is treated fairly.

And, if treated unfairly, employees have the right to do something about it.

Workplace bullying, harassment and discrimination can have serious consequences across state and federal laws in Australia. And these cases are on the rise.

These situations aren’t easy for anyone – whether you’re an employee facing the stressful process of making a claim against your own employer or an employer being put in a delicate position of scrutiny.

So, what constitutes bullying, harassment and discrimination? How do you make a claim? And, if you’re an employer facing these claims, what do you need to do?

Here, we’ll break down everything you need to know about this process.

What Is Bullying, Harassment And Discrimination?

As an employer, you have a responsibility to prevent bullying, harassment and discrimination happening in your workplace.

As an employee, you need to be aware of when it does happen to you, and what you can do about it.

Bullying

Fair Work defines workplace bullying as unreasonable behaviour directed towards someone, which could threaten their health and safety.

Often, ‘bullying’ can be seen as the bigger umbrella that covers workplace harassment and workplace discrimination.

This is because workplace harassment and discrimination are covered by specific state and federal anti-discrimination laws.

So, let’s go through them.

Harassment

As an extension of workplace bullying, harassment involves repeatedly or unreasonably treating someone in a way that threatens their health and safety.

This includes any behaviour that could be considered to be intimidating, threatening, victimising, humiliating or unsolicited.

It is important to note that harassment can take many forms. Even a one-off incident can constitute harassment.

For example, sexual harassment is legally defined as any unwelcome sexual conduct that is offensive, humiliating or intimidating.

Workplace harassment could include anything from insulting racial jokes to aggressive behaviour, derogatory comments and intentionally excluding someone from work events.

Therefore, it’s important to understand how seriously harassment can be taken, no matter how “big” or “small” the situation might seem.

Workplace Discrimination

Discrimination, on the other hand, occurs when an “adverse action” is taken against someone based on their background or attributes.

In simple terms, this means treating someone less favourably based on their gender, sex, race, disability, age or religion.

Under Australian discrimination laws, this is unlawful.

Discrimination could happen at any point in the employment relationship — from recruitment to training, promotion and up until dismissal.

To put this in context, let’s look at some examples.

Example 1

A woman applies for a job. During the interview, the employer asks questions around her plans for having a family, to avoid the woman from being employed based on the likelihood of her taking maternity leave.

Example 2

A man works full-time at an office. However, the man has a disability. There are limited to no accessibility facilities – such as wheelchair access – in the building.

What Are My Obligations As An Employer?

As an employer, you have a number of legal obligations to your employees.

Among them is the obligation to ensure that everyone in the workplace is treated fairly.

And, if you are made aware that this is not the case, you have an obligation to respond immediately.

Why?

Failing to act when you are made aware of discrimination or harassment – such as not investigating complaints or taking prompt action – can be perceived as condoning or tolerating such behaviour.

So, the best thing to do as an employer is to be as proactive as possible.

This means both responding to complaints as soon as possible and also promoting a healthy and safe working environment.

For example, you could have strong workplace harassment policies reflected in a Staff Handbook to prevent these situations from happening.

Where appropriate action is not taken by the appropriate management, your business could be “vicariously liable” for tolerating workplace bullying.

However, it’s also important to understand that reasonable actions do not amount to workplace harassment. For example, negative and legitimate feedback on work-related performance should not be confused with harassment or discrimination.

Therefore, employers should be aware of their responsibility to provide a safe work environment in a way that does not affect their responsibility to provide constructive feedback to their workers.

If you’re still unsure, the Australian Human Rights Commission has handy resources to help you prevent workplace bullying, harassment and discrimination in your workplace.

As an Employee, How Do I Make A Claim?

If you are an employee experiencing workplace harassment or discrimination, it can be a daunting and stressful process to take action.

But, you can always start with non-legal steps.

First, you can try talking to the person who is bullying you. Or you can directly approach your manager or relevant representative in your workplace (such as those who manage workplace complaints).

Otherwise, you can seek help from the Fair Work Commission – the national tribunal that deals with anti-bullying claims across Australia.

Not covered by national anti-bullying laws? You can also reach out to:

Your relevant state workplace health and safety authority (see list here)
The Australian Human Rights Commission (if it relates to discrimination)
Any unions in which you are involved

It’s also important to note that workplace bullying does not only cover employees. These laws apply to outworkers, students gaining work experience, independent contractors and volunteers.

For more information, head to the Fair Work website or chat with one of our friendly team members.

Need Help?

Whether you’re an employee looking to lodge a workplace harassment and discrimination claim or an employer facing these claims, we’re here to help!

Get in touch at 1800 730 617 or team@sprintlaw.com.au for a chat.

Regie Anne Gardoce

Regie is the Legal Transformation Lead at Sprintlaw, with a law degree from UNSW. Regie has previous experience working across law firms and tech startups, and has brought these passions together in her work at Sprintlaw.