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.