Introduction
Australian regulation treats workplace bullying as a hazard arising from the way work is designed and managed, not as a private dispute between two individuals. Accepted workers’ compensation claims for mental health conditions attributed to harassment and bullying are among the most expensive and slowest to resolve in the national data set, with time lost far exceeding that for physical injury (Safe Work Australia, 2023). That framing converts a complaint from a grievance to be settled into a compliance question arising under three regimes at once.
This case study examines a formal bullying complaint received by Wattlebrook Shire Council, a hypothetical regional council in New South Wales; the Council, its staff and the events are invented for this unit. It sets out the legal framework, the procedural fairness obligations that constrain the employer, the investigation, a scored psychosocial risk assessment, the findings on the evidence and the systemic controls indicated, then reflects on why the conduct continued for eleven months before it was reported.
Background and the Complaint
The Council employs 640 full-time equivalent staff across four directorates. Fourteen months before the complaint, the Environment and Planning directorate merged its development assessment and strategic planning teams following a budget review, leaving a single Coordinator with fourteen direct reports, replacing a documented work allocation process with supervisor discretion, and leaving two assessment officer positions vacant for seven months.
The complainant, a development assessment planner who works part-time across four days, lodged a written complaint under the Council’s grievance and workplace behaviour procedure. The complaint named the Coordinator as respondent and particularised six allegations spanning eleven months:
- exclusion from team meetings and from the allocation of significant applications;
- criticism of the complainant’s work in front of colleagues in an open-plan office;
- withholding of information required to meet statutory assessment timeframes, followed by criticism for missing them;
- a requirement to submit daily written activity reports, imposed on the complainant alone;
- repeated remarks connecting the complainant’s part-time arrangement and family responsibilities to a supposed lack of commitment; and
- refusal of flexible work and leave requests without reasons, in contrast with decisions made for other team members.
The complainant provided medical certificates for a recent absence and reported sleep disturbance and elevated anxiety; support was arranged through the employee assistance program, and the matter is treated below at the level of workplace conduct rather than clinical detail. The respondent, notified in writing, denied bullying and characterised the conduct as reasonable management action taken to address genuine performance concerns during a period of statutory backlog.
The Legal and Regulatory Framework
Stop-bullying orders under the Fair Work Act
Part 6-4B of the Fair Work Act 2009 (Cth) allows a worker who reasonably believes they have been bullied at work to apply to the Fair Work Commission for an order to stop the bullying, and since 2021 the same Part supports stop sexual harassment orders. Section 789FD defines bullying at work as repeated unreasonable behaviour by an individual or group towards a worker that creates a risk to health and safety, so three elements must be satisfied: repetition, unreasonableness assessed objectively, and a resulting risk. Section 789FD(2) excludes reasonable management action carried out in a reasonable manner, the provision on which the respondent relies; that exclusion is not established merely by showing the action was warranted, because the manner of execution must also be reasonable, so a legitimate performance concern pursued through public criticism and singular surveillance may still fall outside it.
Two features of the jurisdiction shape the response. The remedy is preventative: the Commission may make any order it considers appropriate to prevent further bullying, but cannot order a pecuniary amount, and cannot make an order at all absent an ongoing risk, which ordinarily requires the worker to remain in the workplace. Access is also not automatic for a local council, since the Part applies to constitutionally covered businesses and council staff in New South Wales are otherwise covered by the state industrial system. Neither point is a reason to respond less thoroughly, because the health and safety duty applies irrespective of the forum.
Work health and safety duties
Under section 19 of the Work Health and Safety Act 2011 (NSW), the Council as a person conducting a business or undertaking owes a primary duty to ensure, so far as is reasonably practicable, the health of workers, and health includes psychological health. Since 2022 the model regulations, adopted in New South Wales as clauses 55A to 55D of the Work Health and Safety Regulation 2017 (NSW), require duty holders to identify psychosocial hazards and eliminate or minimise the associated risk, having regard to the duration, frequency and severity of exposure and to how work is designed and managed. Bullying is a named psychosocial hazard in the model code of practice, an approved code admissible in proceedings, which directs attention to the organisational conditions that generate it, including role conflict, low job control, poor support and high job demands (Safe Work Australia, 2022; SafeWork NSW, 2021).
The consequence for characterisation is significant: a grievance procedure treats the matter as a dispute between two people, whereas the regulations treat it as evidence of an uncontrolled hazard requiring assessment and control whether or not each allegation is substantiated. Officers additionally owe a personal due diligence duty under section 27 to acquire knowledge of psychosocial risk and verify that resources and processes address it.
The anti-discrimination overlay
Allegation 5 engages a further regime. Conduct linking a part-time arrangement and family responsibilities to a supposed lack of commitment may amount to discrimination on the ground of family responsibilities or sex under the Sex Discrimination Act 1984 (Cth). Since December 2023 that Act has imposed a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and hostile workplace environments, enforceable by the Australian Human Rights Commission (Australian Human Rights Commission, 2023). That duty was the central recommendation of the Respect@Work inquiry, which found a complaints-based model placed the burden of systemic change on those least able to carry it (Australian Human Rights Commission, 2020); an employer that acts only once a complaint arrives does not discharge it. A third exposure arises because making a complaint is the exercise of a workplace right under the general protections provisions, so adverse action taken because of the complaint would be actionable independently of the bullying allegations.
Procedural Fairness
Procedural fairness is owed principally to the respondent, whose employment is at risk, and constrains how findings may be reached. The respondent must receive the allegations with sufficient particularity to answer them, meaning the conduct and, where possible, the approximate date and setting rather than a general assertion; must have a genuine opportunity to respond before any finding, with a support person and adequate time; and is entitled to a decision maker free of actual or apprehended bias, which here excludes the Director of Environment and Planning, who authorised the restructure and had previously counselled the complainant about performance. Findings must rest on evidence, and adverse material must be put to the person it affects before it is acted upon.
Fairness is also owed to the complainant, as timeliness, confidentiality limited to those with a need to know, protection from detriment, and an explanation of the outcome. Interim measures must not disadvantage the complainant, so the reporting line was reassigned temporarily to another coordinator rather than moving the complainant, since relocating the person who complained is itself a detriment and a discouragement to everyone watching.
The Investigation Process
An external investigator was engaged on terms of reference confined to findings of fact, with the outcome reserved to the General Manager. Table 1 sets out the process, the evidence gathered at each stage, and the elapsed business days against the 35-day standard adopted for the matter.
Table 1: Investigation process, evidence and elapsed timeframes
| Stage | Action | Evidence obtained | Business days |
|---|---|---|---|
| 1 | Receipt and acknowledgement; complainant advised of process, support and protection from detriment | Complaint document; acknowledgement letter | 0-1 |
| 2 | Triage and immediate psychosocial risk assessment; reporting line temporarily reassigned; no-detriment notice issued across the directorate | Risk assessment record; interim measures file note | 1-3 |
| 3 | External investigator appointed on written terms of reference limited to findings of fact | Signed terms of reference; conflict of interest declaration | 3-5 |
| 4 | Allegations particularised to the respondent in writing, with a support person and a response period offered | Allegation letter; written acknowledgement | 5-8 |
| 5 | Complainant interview; chronology tested against contemporaneous records | Transcript; email and calendar records | 8-11 |
| 6 | Respondent interview with support person present; reasonable management action explanation tested | Transcript; performance improvement plan documents | 12-15 |
| 7 | Six team members interviewed separately, including two nominated by the respondent | Six signed witness statements | 15-22 |
| 8 | Documentary and system evidence collected on allocation, attendance and leave decisions | Allocation register; meeting invitations; shared drive access logs | 10-22 |
| 9 | Proposed adverse findings put to the respondent for response before finalisation | Respondent’s written response | 23-28 |
| 10 | Findings report provided to the General Manager; outcome determined | Investigation report; decision record | 29-33 |
| 11 | Parties informed of the outcome; control plan issued to the directorate | Outcome letters; signed control plan | 34-35 |
| 12 | Effectiveness review of interim and permanent controls | Survey and follow-up interview data | 90 and 180 |
Figure 1 places that sequence in context. The internal pathway runs across the top; the avenues below are open to the worker in parallel and are not conditional on the internal process being exhausted first, a point managers frequently miss when they ask complainants to wait.
Psychosocial Risk Assessment
The hazards exposed by the complaint were scored on the 5×5 matrix in the Council’s enterprise risk framework, where risk equals likelihood multiplied by consequence. Likelihood runs from L1 (rare) to L5 (almost certain) and consequence from C1 (insignificant) to C5 (severe, a serious psychological injury with prolonged absence), with bands of Low (1 to 4), Moderate (5 to 9), High (10 to 16) and Extreme (17 to 25). Table 2 records the assessment before and after the controls proposed below.
Table 2: Psychosocial hazard assessment, inherent and residual scores
| Ref | Psychosocial hazard | Evidence from the investigation | L | C | Inherent | Residual |
|---|---|---|---|---|---|---|
| H1 | Repeated unreasonable behaviour by a supervisor | Four allegations substantiated across eleven months | 4 | 4 | 16 High | 8 Moderate |
| H2 | Role conflict and unclear work allocation | Allocation by supervisor discretion after the merger; no documented criteria | 4 | 3 | 12 High | 6 Moderate |
| H3 | Low job control and individualised monitoring | Daily reporting imposed on one officer with no end date | 3 | 3 | 9 Moderate | 6 Moderate |
| H4 | Poor supervisor support | Fourteen direct reports; no supervision schedule; no supervisor training since the merger | 4 | 3 | 12 High | 6 Moderate |
| H5 | Gendered remarks about family responsibilities | Corroborated by three witnesses; three flexible work refusals without reasons | 3 | 4 | 12 High | 4 Low |
| H6 | Fear of detriment suppressing reporting | Eleven-month delay in reporting; two earlier matters closed at triage | 4 | 4 | 16 High | 8 Moderate |
| H7 | High job demands | Two vacancies unfilled for seven months against a statutory assessment backlog | 4 | 3 | 12 High | 9 Moderate |
Aggregating the register gives a defensible measure of whether the response is proportionate to the exposure:
- Inherent profile = (16 + 12 + 9 + 12 + 12 + 16 + 12) / 7 = 89 / 7 = 12.7, which sits in the High band
- Residual profile = (8 + 6 + 6 + 6 + 4 + 8 + 9) / 7 = 47 / 7 = 6.7, which sits in the Moderate band
- Reduction achieved = (89 – 47) / 89 = 0.472, or 47.2 per cent
- Hazards scored High or above = 6 of 7 (85.7 per cent) before controls, 0 of 7 after
The arithmetic carries an argument. Six of the seven hazards are properties of how the work was organised rather than of the respondent’s temperament, so disciplinary action against one supervisor addresses H1 alone and leaves an aggregate of (12 + 9 + 12 + 12 + 16 + 12 + 8) / 7 = 81 / 7 = 11.6, still in the High band. Consequence cannot fall below C3 while the vacancies and backlog persist, which is why the control plan targets likelihood through the design of work.
Findings on the Balance of Probabilities
Findings are made on the balance of probabilities, subject to the principle that the seriousness of an allegation affects the quality of evidence required, so serious findings should not rest on inexact proofs or indefinite testimony (Briginshaw v Equitable Life Assurance Society of Australasia, 1938). Contested oral evidence without documents or corroboration will not sustain an adverse finding.
Allegation 1 was substantiated: calendar records showed the complainant omitted from nine of twelve team meetings while every other planner was invited to all twelve, and the allocation register recorded no significant application allocated to the complainant in seven months, the respondent’s explanation that part-time hours made attendance impractical being inconsistent with meetings scheduled on days the complainant worked. Allegation 2 was substantiated in part: two of five occasions were corroborated by two witnesses each, while the remaining three rested on the complainant’s account alone, illustrating the operation of the standard rather than any adverse view of credibility. Allegation 3 was not substantiated, since access logs showed the relevant files were available throughout and the delays were consistent with vacancies affecting the whole team.
Allegation 4 was substantiated as to fact but required characterisation: a performance improvement plan existed and was itself reasonable management action, but the daily written reporting requirement did not appear in it, carried no end date, applied to no other officer and continued past the plan’s review date, so management action reasonable in substance was unreasonable in manner and falls outside section 789FD(2). Allegation 5 was substantiated, corroborated by three witnesses, and engages the discrimination overlay as well as the bullying definition. Allegation 6 was substantiated on the documents, three flexible work requests having been refused without written reasons while four comparable requests from full-time officers were approved.
Four allegations were substantiated in full, one in part and one not at all. The substantiated conduct was repeated, directed at the complainant and created a risk to health and safety evidenced by the medical certificates and the assessment in Table 2; it satisfies the statutory definition, and the reasonable management action exclusion does not rescue it, because that exclusion protects the manner of management as well as its substance.
Remedies and Preventative Controls
The Council’s obligations are not discharged by a disciplinary outcome. Clause 55B requires elimination of psychosocial risk so far as is reasonably practicable, and the positive duty requires proactive measures, so the plan in Table 3 separates systemic controls that alter the design of work from individual controls directed at the parties.
Table 3: Remedial and preventative control plan
| Ref | Control | Level | Owner | Verification measure |
|---|---|---|---|---|
| C1 | Restore criteria-based allocation of applications through the assessment system, removing unstructured supervisor discretion | Design of work | Director, Environment and Planning | All applications allocated by a recorded rule |
| C2 | Split the coordinator role into two positions and fill the two vacant assessment officer roles | Design of work | General Manager | Span of control of 8 or fewer; vacancies filled within 90 days |
| C3 | Mandatory supervisor program covering performance conversations, flexible work obligations and psychosocial duties | Administrative | Manager, People and Culture | All supervisors completed within 6 months |
| C4 | Rewrite the complaints procedure: risk assessment within 3 days, published timeframes, a reporting channel outside the line of report, and an express no-detriment clause | Administrative | Manager, People and Culture | Median resolution at or below 35 business days |
| C5 | Quarterly psychosocial hazard review by the work health and safety committee with health and safety representatives, reported to the audit, risk and improvement committee | Administrative | Work Health and Safety Coordinator | Four documented reviews each year |
| C6 | Disciplinary outcome for the respondent: final written warning, supervisory responsibility withdrawn pending completion of coaching and a supervised improvement plan | Individual | General Manager | Plan completed; no further substantiated conduct in 12 months |
| C7 | Reintegration plan for the complainant with no change to role, grade or hours, reviewed at 4 and 12 weeks | Individual | Director, Environment and Planning | Both reviews completed; complainant confirms no detriment |
| C8 | Six-monthly psychosocial survey reported at team level wherever response numbers preserve anonymity | Monitoring | Manager, People and Culture | Two surveys each year with results tabled |
Critical Reflection: Culture and Reporting Barriers
The instructive question is not whether the conduct occurred but why it continued for eleven months in an organisation with an anti-bullying policy, induction training and a published values statement. The Council’s own staff survey supplies part of the answer:
- Survey response rate = 412 / 640 = 0.644, or 64.4 per cent of the workforce
- Respondents reporting bullying in the previous 12 months = 18.7 per cent, so 0.187 x 412 = 77 workers
- Formal complaints lodged in the same period = 6
- Formal reporting rate = 6 / 77 = 0.078, approximately one complaint for every thirteen reported experiences
A reporting rate near 8 per cent is consistent with prevalence research finding that measured exposure exceeds formal complaints by an order of magnitude (Nielsen & Einarsen, 2018). Four barriers are visible. The procedure required the complaint to travel through the line of report, and the person complained of was the line of report. The regional labour market is thin, with only three councils within 120 kilometres employing development assessment planners, so exit is not a realistic remedy. The median resolution time for the six prior complaints was 61 business days against a 35-day standard, and outcomes were not communicated to those who raised them. Finally, the reasonable management action formula had closed two earlier matters at triage, teaching staff that the label defeats the complaint before the evidence is examined.
Culture explains the remainder. Policy proliferation without any change to how work is organised is a recognised feature of Australian public sector anti-bullying regimes, where documented processes coexist with persistent conduct because they address individuals and not the conditions producing the behaviour (Hutchinson & Eveline, 2010). Perceived senior management priority on psychological health predicts exposure more reliably than a policy’s content (Dollard & Bakker, 2010), and the work environment hypothesis locates bullying where role conflict, low job control and poor leadership coexist, which describes the post-merger team precisely (Einarsen et al., 2020). The restructure was assessed for financial risk and never for psychosocial risk, although clause 55B required the latter. Investigation is in any case a lag control that responds only after harm, so compliance depends on the systemic measures in Table 3 and, above all, on visible non-detriment for the complainant, since the reporting rate will not move while staff believe that complaining costs more than enduring.
Conclusion
The complaint was substantiated in substantial part and meets the statutory definition of bullying at work. The reasonable management action exclusion failed not because the performance concerns were fabricated, but because the manner in which they were pursued was unreasonable, a distinction that decides most contested matters of this kind and one supervisors are rarely trained to observe.
Two conclusions of wider application follow. A fair investigation does not exhaust the Council’s obligations: the work health and safety regulations and the positive duty require it to control the hazards the investigation exposed, and the scored assessment shows disciplinary action alone would leave the aggregate at 11.6, still in the High band. And a reporting rate near one in thirteen means the Council’s knowledge of its own psychosocial risk is systematically incomplete, so the survey and review cycle in controls C5 and C8 is not administrative overhead but the only reliable substitute for complaints that are never made.
References
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