Many people in the modern workplace are now are of the unfortunately at times now ubiquitous issue of bullying in the workplace and in particular in the construction industry, in times of a greatly increased awareness in the public domain of mental health.

Many people in the modern workplace are now are of the unfortunately at times now ubiquitous issue of bullying in the workplace and in particular in the construction industry, in times of a greatly increased awareness in the public domain of mental health.

The issue though is for you as an employer or as an employee, what you do with an allegation or allegations of workplace bullying. What are the reasonable and lawful options?

As an employee it is easy to feel in a sense trapped and that there is no easy solution. Who can you turn to, particularly a live issue when there alleged perpetrator is your boss.

Despite the difficulties inherent in such a situation, and even in a case where the alleged perpetrator is a fellow employee or colleague, there are options. One, employees often have the option of free confidential workplace counselling programs, often titled EAP. The author has in fact utilised such services in the past and they can be great for getting a raft of strategies for dealing with the problem. In addition, they can in fact be the facilitator or go between, between the perpetrator and or employer which directly result in a resolution to the problem. It must be remembered that even the perpetrator has a right to what is terms procedural fairness so that the HR department and or employer representatives should put the allegations to the alleged perpetrator and give them a chance to respond to the allegations.

Next, as mentioned are HR departments which should not be discounted out of hand. They have their limitations arising mainly from the fact that they are employed for and paid by the employer but in the end, if they assist employees issues at the workplace, they create a better and more harmonious workplace.

As an employer, what you need first and foremost to be concerned about is alleviating or removing the legal risk of a legal claim arising from an allegation that you have not provided a healthy safe workplace environment for the employee (or indeed, others). It is a non-delegable duty in the sense that the employer has a duty themselves to prevent the risk and it cannot be delegated to another person or entity. Professional advice is always an option and there are plenty of professional advisors such as HR specialists and of course, legal practitioners who can assist and advise.

Other non-legal options for employees are discussion with the person doing the bullying, discussing with non-workplace counsellors, with friends and family and with other colleagues. Some employers have even taken the laudable option of setting up an ad hoc role, person or committee at the workplace itself to raise with that person or persons on a strictly confidential basis not only bullying allegations but also possibly other workplace issues where confidentiality is key.

As far as the legal options are concerned, an employee has the option of making an application to the Fair Work Commission for an ‘order to stop the bullying.’ What will result from that application if successful is in the form of a preventative order from the Commission, to stop the bullying occurring any longer. Implied into that is the likelihood of the bullying continuing and in addition, that the employee is still currently employed in the organisation. Unfortunately, it is all too common that the employee believes that they have or have had no alternative but to resign

Breach if it will result in the employer and or the perpetrator coming back before the Commission to explain the default. This is likely to cause much added stress, time and cost to the employer in particular so that they have a real incentive to have the issue addressed. It is important to remember that in such an application, no compensation can be awarded. Compensation, if it is to be obtained in such the scenario of workplace bullying, needs to come from a different type of legal claim altogether, such as damages for breach of contract, breach of statutory and common law duties and other similar types of claims. It is beyond the scope of this article to advise further as to these other potential claims and advice should be sought.

The author has acted in quite a few ‘anti bullying applications’ and his experience is that the process works very well, and in every case, the matter has been resolved at the mediation process which is a mandatory part of the procedure. In none of these cases has there been a necessity for the matter to come back before the Commission.

It is hopes that this article gives some food for thought for those dealing with an issue of workplace bullying and or witnessing or experiencing it. The issue is complex and human nature being what it is, in some sense unpredictable.