A Short Sto­ry about Bullying

In the recent Fair Work Com­mis­sion deci­sion of Appli­ca­tion by Gary Whitham [2026] FWC 3322, Deputy Pres­i­dent Col­man gave short shrift to an appli­ca­tion brought for an order to stop bullying, 

In fact, it was very short shrift; the entire judg­ment of two para­graphs is set out below:

[1] Gary Whitham made an appli­ca­tion under s 789FC of the Fair Work Act 2009 (Act) for anti-bul­ly­ing orders against Inte­grat­ed Care Pty Ltd and three cowork­ers (respon­dents). Mr Whitham said that in June and July 2026 the respon­dents engaged in unrea­son­able behav­iour towards him. Among oth­er things, Mr Whitham said that he was required to under­go con­fus­ing train­ing; he was told to adhere to the dress code; he was ques­tioned about an ill­ness; he was con­tact­ed while sick; he was sub­ject­ed to ​‘neg­a­tive remarks’ about his work; he was told that his home inter­net was inad­e­quate; and he was asked to con­sent to the com­pa­ny con­tact­ing his doc­tor. Mr Whitham said that he did not believe he could return to the work­place and that what he sought was the pay­ment of com­pen­sa­tion so that he could tran­si­tion to new employment.

[2] Ear­li­er this morn­ing, I dis­missed the appli­ca­tion ex tem­pore. I was not sat­is­fied that Mr Whitham had been bul­lied at work, because I did not regard any of the mat­ters com­plained of to be unrea­son­able, and there was no basis to con­clude that there was any risk to his health and safe­ty. As the require­ments of s 789FF(1)(b) were not met, the Com­mis­sion had no pow­er to make an order. Fur­ther, the Com­mis­sion is pre­clud­ed from mak­ing orders requir­ing pay­ment of a pecu­niary amount. The appli­ca­tion was in any event devoid of merit.

The deci­sion acts as a brief but nev­er­the­less stark reminder of what does not con­sti­tute bul­ly­ing for the pur­pose of stop bul­ly­ing orders under the Fair Work Act 2009 (Cth)(Act).

Speak­ing gen­er­al­ly, many employ­ees have a mis­con­cep­tion about the def­i­n­i­tion of bul­ly­ing. The rel­e­vant con­duct direct­ed towards the employ­ee must be, among oth­er things, repeat­ed and unrea­son­able. Rea­son­able man­age­ment action car­ried out in a rea­son­able man­ner is specif­i­cal­ly carved out.

The pro­tec­tion in the Act against bul­ly­ing is not a shield from every­thing an employ­ee may find unpleas­ant, objec­tion­able or chal­leng­ing. The stop bul­ly­ing pro­vi­sions in the Act recog­nise mod­ern work­places are not a utopia of rain­bows and uni­corns. Some­times employ­ers need to take robust steps to address per­for­mance and con­duct issues with employ­ees. The state of the law is not such that every action that upsets or annoys an employ­ee gives rise to a legal remedy.

Terms such as ​‘bul­ly­ing’ and ​‘psy­choso­cial haz­ard’ are fre­quent­ly cit­ed by aggriev­ed employ­ees. While good faith claims of improp­er con­duct need to be tak­en seri­ous­ly, in con­sid­er­ing the mer­it of such alle­ga­tions employ­ers should engage with the rel­e­vant def­i­n­i­tions and prin­ci­ples under the Act, and have no com­punc­tion about defend­ing rea­son­able man­age­ment action and sup­port­ing employ­ees who, often by neces­si­ty as part of their role, have under­tak­en that action.