The word “bullying” is used all the time in workplace investigations.  Complainants often feel “bullied” because of the alleged actions of a co-worker but the number of times that the word “bullying” is used in a complaint and when it is appropriate to make a finding of bullying are two very different things. 

There are 7 things you should do before making a finding of bullying in a workplace investigation. 

Number 1 – If you think there is a possibility that the investigation could result in a finding of bullying review what your organisation’s definition of bullying is and make sure that it is in line with the legal definition. 

The Fair Work Act says that bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work and the behaviour creates a risk to health and safety.

Number 2 – Don’t put the word bullying in a specific allegation.  For example, don’t write an allegation that says

On the 7th of June 2022, near the conveyor belt, John bullied Joe by shouting at Joe words to the effect of “get out of the way”. 

The investigation may substantiate the allegation against John that he behaved inappropriately by shouting at Joe but we are a long way from making a finding that he John bullied Joe.  It’s a much better idea to make a decision as to whether a finding of bullying could be made at the end of the investigation when you have determined what happened. 

Why? because you may have enough evidence to make a finding that John yelled at Joe and that it was a breach of the code of conduct, but until you have more you cannot make a finding that the conduct was bullying. 

Number 3 -  Determine whether the conduct was repeated.   

This is the first and often the biggest hurdle to cross when making a finding of bullying.  You might have ten allegations that John yelled at Joe, but if you only have enough evidence to show that it happened on one occasion then it is not bullying because it is not repeated.  It’s still probably misconduct and a breach of code of conduct but it’s not bullying. 

Often when we think about repeated bullying behaviour we think about something that has happened over a long period of weeks, months or years but it’s not necessary for the conduct to have happened over an extended period.  In fact it’s possible that the conduct could have happened over one shift, but was repeated on that shift. 

Number 4 – Was the conduct unreasonable? 

Making a finding of whether conduct was reasonable or not can be difficult and will be reliant on the specific facts of the case.  If we go back to our example of John yelling at Joe.  That would be considered inappropriate conduct in most cases, but what if John and Joe work in a factory where heavy machinery was used?  John may admit that he yelled at Joe but explain that he did so in order to let Joe know that he was about to be hit by a piece of machinery and he was simply trying to save Joe.  There was no other way to convey the message besides shouting because of the sound of the machinery running in the background.  In that version of events John goes from alleged bully to possible hero. 

Number 5 – Determine whether the conduct occurred at work.   This is usually not an issue but can be more tricky when it comes to online bullying or work social event.

Number 6 – Determine whether the conduct created a risk to health and safety. 

When determining whether the conduct created a risk to health and safety you will need evidence from the complainant that shows that there is a risk.  This may involve getting a medical or psychological report. 

If you can satisfy all four of those requirements 1 it happened at work 2 it was repeated, 3 it was unreasonable and 4 it creates a risk to health and safety then a finding of bullying can be made. 

Number 7 - Finish your investigation and then make findings of fact before you turn your mind to whether the conduct satisfies the legal definition of bullying.  If at the end of the investigation you have sustained more than one allegation that falls into the definition of bullying, then and only then, should you made a determination as to whether the conduct was bullying.