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Bullying and Unfair Dismissal

August 17, 2012

Did you know that bullying isn’t only for the playground? It can happen even in the workplace, among adults. Unfortunately, bullying in the workplace can even be connected with unfair dismissals. To find out more about the legal aspects of bullying and unfair dismissal, here are some details on anti-bullying laws and what you can do if terminated unfairly.

Is Bullying Illegal?

Yes, indeed, bullying is illegal. However, there is no specific Australian law that explicitly defines bullying in the workplace. There are, however, several laws that can be applied that makes bullying against the law. These include the following:

  • The Occupational Health, Safety and Welfare Act covers the well-being of employees in the workplace. This refers to the prevention of work-related illnesses and injuries. Since bullying can affect a person's psychological well-being and would eventually display physical health problems, bullying falls under this law. This law also places the onus on employers to ensure that employees are safe from harm and risk of harm at work.
  • The Training and Skills Development Act 2003 in South Australia covers the responsibilities of employers, trainees and apprentices (especially when resolving complaints).
  • While the Workers Rehabilitation and Compensation Act 1986 doesn't mention bullying, it does talk about psychiatric disabilities caused by workplace bullying.
  • According to the Fair Work Act 1994, an employee that is unfairly dismissed or involuntarily resigns can make a claim under the act.
  • Bullying in the workplace may also be subject to criminal law due to acts like assault and unlawful threats.

Unfair Dismissal

According to Fair Work Australia, unfair dismissal happens when one applies for an unfair dismissal remedy and the institution makes the following conclusions:

  • The employee was terminated, and
  • The dismissal was harsh, unreasonable or unjust, and
  • The dismissal wasn't a case of genuine redundancy, and
  • The dismissal wasn't consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business (i.e. a business that has less than 15 workers).

If you feel you were forced to resign because of bullying in the workplace, you can make an unfair dismissal claim against your employer. This can be considered constructive dismissal under Australia’s industrial relations law.

How to Make an Unfair Dismissal Application

All you have to do is download the F2 Form named Application for Unfair Dismissal Remedy, fill it up, and then submit it through the following:

  • By personally visiting the Fair Work Australia office
  • Through regular mail
  • Through facsimile
  • Through telephone
  • Through e-mail or logging in the Fair Work Australia website

Some Reminders:

  • Your application for unfair dismissal must be submitted within 14 days of your effective termination. Fair Work Australia said it can accept late submissions, but only in "exceptional circumstances". Unfortunately, there was no mention of whatever these circumstances are.
  • There is an application fee worth AUD62.40. If you can prove that the fee would cause you "serious hardship", it would be waived.
  • Your application for the waiver should be included when you hand over the accomplished application form.