Workplace bullying is one of the few people-management problems in Australian small business that sits across three legal regimes at once. The Fair Work Commission can order it to stop. A work health and safety regulator can prosecute the business for failing to control it as a hazard. And the conduct itself can ground a separate claim — adverse action, discrimination, or a common-law negligence suit — depending on what was done and by whom.
For an owner or operator, the practical question is rarely "is this bullying in the abstract." It is "does this employee complaint, this manager-on-report-card conversation, or this team-chat exchange meet the legal definition, and what does the business have to do about it." This article walks through how the law actually defines workplace bullying, what falls inside and outside the line, the consequences for a business that lets it run, and where the worked example sits in practice.
The sections below cover:
- The statutory definition under the Fair Work Act 2009 (Cth)
- The conduct that typically meets the definition
- Reasonable management action — the most important carve-out
- The health and safety side of the same problem
- A worked example for an SMB
- Where legal advice is usually worth getting
The statutory definition
The starting point is section 789FD of the Fair Work Act 2009 (Cth). A worker is "bullied at work" if, while at work in a constitutionally-covered business, an individual or group of individuals repeatedly behaves unreasonably towards the worker (or a group of workers the worker belongs to), and that behaviour creates a risk to health and safety.
Three elements have to line up:
- Repeated — a single incident, however unpleasant, does not meet the test. There has to be a pattern. The behaviour does not have to be the same act each time; a course of unreasonable conduct over time qualifies.
- Unreasonable — measured against what a reasonable person, knowing the same circumstances, would consider unreasonable. It is an objective test, not the complainant's subjective reaction.
- Risk to health and safety — "health" includes psychological health, not just physical. The risk has to be real, but the worker does not have to wait until they are harmed.
"Worker" is broader than "employee." It picks up contractors, subcontractors, apprentices, trainees, work-experience students, and volunteers — anyone who carries out work in any capacity for the business.
"Constitutionally-covered business" is the jurisdictional hook for the Fair Work Commission's anti-bullying order. In practice it captures most Pty Ltd businesses; unincorporated sole traders and partnerships in some states sit outside the Commission's anti-bullying jurisdiction but still face the WHS duties discussed below.
What the conduct typically looks like
The Act does not give a list. The Fair Work Commission and Safe Work Australia have, through guidance and decided cases, identified recurring patterns. The common forms include:
- Repeated verbal abuse — yelling, swearing, insults directed at a worker
- Spreading false or malicious rumours about a worker
- Deliberate exclusion from meetings, decisions, or social events that are part of the work environment
- Intimidating conduct — standing over a worker, slamming doors, aggressive posture
- Setting impossible deadlines or constantly shifting goalposts so the worker is set up to fail
- Withholding information the worker needs to do their job
- Public ridicule or humiliation, including in team chats and emails copying others in
Two categories sit on a fault line and are worth calling out:
- Practical jokes and initiation rituals. Once-off horseplay between consenting peers is unlikely to be bullying. A pattern of "jokes" targeting one worker is. The fact the perpetrator did not intend harm is not a defence.
- Online conduct. Conduct in a Slack channel, Teams thread, WhatsApp group, or work email is "at work" for the purposes of the definition where it relates to or arises from work, even if it happens outside hours and on personal devices.
Physical violence is also bullying conduct, but it usually triggers police, WHS, and dismissal pathways that move faster than the Fair Work Commission's stop-bullying route.
Reasonable management action — the most important carve-out
Section 789FD(2) of the Act says behaviour does not constitute bullying if it is reasonable management action carried out in a reasonable manner. This is where most "I'm being bullied by my manager" complaints from owners' inboxes actually sit, and where most managers get nervous about performance-managing anyone.
To fall inside the carve-out, the action has to be both reasonable in substance and reasonable in how it was delivered. Examples that typically qualify:
- Giving honest, evidence-based performance feedback
- Issuing warnings for genuine misconduct
- Allocating work, including unwelcome work, on a defensible basis
- Investigating complaints
- Implementing organisational change that affects roles
- Refusing leave or a flexibility request where there is a proper basis
The "reasonable manner" limb is where management action most often falls over. A performance conversation that is fair in substance but conducted at high volume in front of the team, with personal insults, or in retaliation for a complaint, can lose the protection of section 789FD(2). The question the Commission asks is not "was the manager perfect" but "did the manager act within the range of what a reasonable manager could have done." Imperfect, blunt, or even harsh management is not automatically unreasonable.
Differences of opinion, robust disagreement, and ordinary workplace conflict are also outside the definition — but, as the Fair Work Commission has noted in its anti-bullying decisions, conflict that is not addressed has a habit of escalating into conduct that is.
The health and safety overlay
The Fair Work anti-bullying jurisdiction is only one channel. The same conduct is, almost always, also a work health and safety hazard.
Safe Work Australia treats workplace bullying as a psychosocial hazard. Under the model WHS laws, a Person Conducting a Business or Undertaking (PCBU) — which captures the business itself, not just individual managers — has a primary duty to ensure, so far as is reasonably practicable, that workers are not exposed to risks to their health and safety. "Health" in the WHS Act covers psychological health, not only physical.
For an SMB, that duty translates into three concrete obligations:
- Identify the risk of bullying — through worker consultation, incident reports, anonymous channels, exit interviews
- Control it — through a code of conduct, an investigation and response procedure, training for managers, and visible action when complaints are substantiated
- Review the controls — periodically, and after any incident
A failure on any of these can ground a WHS regulator notice or, in serious cases, prosecution of the business and its officers. State WHS regulators (SafeWork NSW, WorkSafe Victoria, Workplace Health and Safety Queensland, and equivalents) actively enforce psychosocial hazard duties. The duty exists whether or not any individual worker has filed a stop-bullying application — the obligation is on the business proactively.
A worked example
A six-person agency runs its operations through Slack and a weekly all-hands. The operations manager has, over four months, repeatedly singled out one designer in the all-hands — interrupting, asking the same critical question in five different ways, sometimes laughing while doing so. In Slack, the operations manager has reposted the designer's draft work into the general channel with comments like "look what I'm dealing with." The designer has started taking sick days on all-hands mornings.
Run the definition:
- Repeated — yes, a four-month pattern, both verbal and written.
- Unreasonable — singling out one worker, public ridicule, and reposting work to mock it sits well outside the range of reasonable management action. Even if the underlying critique of the work were fair, the manner is not.
- Risk to health and safety — the sick days, taken on the predictable trigger day, are a present indicator. A reasonable employer would treat that risk as live.
The conduct meets section 789FD on the available facts. The designer can apply to the Fair Work Commission for an order to stop the bullying. Independently, the business has a WHS exposure — the pattern was visible in a team chat and in weekly meetings, so the "we didn't know" defence is weak. The right response for the owner is not to wait for the designer to file: it is to investigate the operations manager's conduct, separate the parties while doing so, and document the steps taken. Doing nothing keeps both the FWC and the WHS regulator in play.
Working with Artificer on a workplace bullying issue
Most workplace bullying matters that reach a lawyer's desk are mid-flight — a complaint has been made, a manager has been accused, or a regulator has asked questions. The work breaks into a few practical phases:
- Triage. Whether the complaint, on the facts available, sits inside or outside section 789FD; whether there are parallel adverse action, discrimination, or contractual issues; whether a stop-bullying application is realistically on the way.
- Investigation design. Who conducts it (internal vs external), the terms of reference, procedural fairness for the respondent, what is documented and how, what happens to the parties during the investigation.
- Findings and outcome. Whether the conduct is substantiated on the balance of probabilities; what disciplinary or remedial response is proportionate; how the outcome is communicated; what training, supervision, or structural change is needed.
- Policy and prevention. A defensible code of conduct, a complaints procedure that workers will actually use, manager training, and a documented psychosocial risk assessment — the controls a WHS regulator will look for if a notifiable incident occurs.
- Litigation, if it comes. Defending or running a Fair Work Commission stop-bullying application, responding to a WHS regulator's improvement notice, or dealing with a related general protections or discrimination claim.
The earlier in that sequence the business gets advice, the cheaper and cleaner the resolution. The most expensive matters are the ones where a manager has been let run, complaints have been handled informally for months, and the first formal step is an application served on the business.
Conclusion
Workplace bullying is repeated unreasonable conduct at work that creates a risk to health and safety, and the Australian system tackles it from two directions — a Fair Work Commission jurisdiction to order it to stop, and a WHS duty on the business to prevent it before it happens.
The definition turns on three elements: repetition, objective unreasonableness, and a risk to health and safety. Reasonable management action carried out reasonably is carved out, which protects honest performance feedback, warnings, and ordinary work allocation — but the carve-out is lost when the manner of the action tips into ridicule, retaliation, or public humiliation. The same conduct that grounds a stop-bullying application almost always also grounds a WHS exposure for the business itself, which means SMB owners cannot afford to wait for an application before responding. Identify the risk, control it through written procedures and manager behaviour, and act visibly when a complaint comes in.