If you’ve been bullied at work, the main recourse is through an Application for an Order to Stop Bullying (Form F72) in the Fair Work Commission. However, an Order to Stop Bullying operates to prevent further bullying from occurring in the workplace. Therefore, if you are no longer working at the company where you were bullied, you cannot lodge an Order to Stop Bullying as you are no longer exposed to the risk. So what can you do?
I think I was dismissed because I was being bullied. What can I do?
If you were dismissed because you were being bullied, you may be able to bring an Application for Unfair Dismissal (Form F2) or General Protections (Form F8) in the Fair work Commission. To pursue either application, it is not necessary for your employer to explicitly state that you are being dismissed for having being bullied, but it is sufficient if you can identify a reasonable connection between the bullying and your dismissal. For example:
- You were dismissed because you complained about the bullying, whether or not this was the official reason given by the company;
- You were dismissed because the company thought it was easier to dismiss your employment than address the bullying;
- As part of the bullying conduct, someone else complained about bullying against you, for which you were dismissed.
Most of the time, if the company has dismissed you in any of these circumstances, the company won’t officially say that the bullying was the reason for dismissal. If the company is determined to get rid of you in relation to the bullying, they will typically claim that the dismissal is for another reason, such as poor performance, misconduct or incapacity. If you have never before had any such issues with your employment but are suddenly being dismissed, then it is worth considering whether your dismissal actually was due to the bullying.
In such circumstances, you may bring either an Application for Unfair Dismissal or General Protections. Usually, the test for Unfair Dismissal (harsh, unjust or unreasonable dismissal) is easier to meet than General Protections (adverse action due to the exercise of a workplace right or discrimination). However, which application you choose may depend on a number of factors. To be eligible for an Unfair Dismissal application, you must meet the following requirements:
- You have been employed for the minimum employment period. This is either 6 months if there are over 15 permanent employees, or 12 months if there are under 15 permanent employees.
- You are a full-time or part-time employee, or a casual employee with regular and systematic employment (i.e. consistent rostering or a pattern of employment).
- Your base annual salary (excluding superannuation) is below the high income threshold of $158,500.
Alternatively, you can pursue a General Protections Application if you are not eligible for Unfair Dismissal or if your case is better suited to the General Protections requirements. To pursue a General Protections Application, you would need to establish that your dismissal was adverse action for you exercising a workplace right or for a discriminatory reason. For example, this would be most relevant where perhaps you reported or complained about the bullying you were experiencing, and as a result, you were dismissed from your employment.
Bullying claim – I think the bullying was discrimination. What can I do?
If you were bullied because of a particular personal attribute, the bullying may be a form of discrimination. Discrimination is defined as different or less favourable treatment due to certain protected attributes such as:
- Disability or impairment
- Marital status
- Lawful sexual activity
In some cases, the dismissal itself might also be a form of discrimination, along with the bullying. The outcome for discrimination cases is typically compensation for financial loss or psychological harm incurred as a result of the discriminatory treatment.
Depending on your case and which state you are from, even after you have been dismissed, you can either pursue a General Protections Application in the Fair Work Commission, or a Discrimination Complaint in the relevant Human Rights Commission.
To discuss what options may be best in your circumstances, call 1300 766 700 for an obligation-free consultation.
By Gary Pinchen.