Workplace bullying vs serious misconduct

Bullying in workplaces is intolerable. It is a psychosocial hazard that employers have a duty to eliminate and prevent so far as is reasonably practicable. But does the safety duty to eliminate hazards from bullying require that a bully be dismissed, or disciplined in a particular way, in every case?

In the decision of Frost v Ambulance Victoria [2025] FWCFB94, a Full Bench of the Fair Work Commission considered whether substantiated findings of bullying amounted to serious misconduct.

The Full Bench considered that bullying can range in seriousness and that a finding of bullying on its own is simply not enough to justify a finding of serious misconduct and dismissal. The judgment confirms that bullying conduct must always be assessed against the common law and any applicable legislative and industrial instruments, in order to determine its seriousness and the appropriate disciplinary sanction.

The decision

The case at first instance involved the arbitration of an industrial dispute under s. 739 of the Fair Work Act 2009 (Cth) between the parties who were regulated by the Ambulance Victoria Enterprise Agreement 2020.

In dispute was the decision of Ambulance Victoria to impose a disciplinary sanction of transfer on the Applicant following an investigator’s findings that the Applicant had engaged in bullying conduct towards co-workers.

The investigator had found that Mr Frost was generally rude, did not respect women, had ignored greetings from one complainant, would not engage in conversation with her and had belittled her contributions and failed to create a respectful working environment. Such conduct was considered unreasonable and a risk to safety. Mr Frost did not challenge the investigator’s findings but said that the conduct did not amount to serious misconduct and therefore the right to transfer him had not been enlivened.

At first instance, the Commission considered that the substantiated finding of bullying conduct was sufficient to justify a finding of serious misconduct.

On appeal, one of the questions was whether the Commission below had equated bullying with serious misconduct. It was determined that the Commission had done so and that finding constituted an error of law.

The Full Bench said that in this case whether bullying amounted to serious misconduct was determined by the meaning given to bullying in the Agreement. Whether the disciplinary action of transferring the Applicant was justified was also determined by reference to whether it constituted serious misconduct as defined in the Agreement.

Put simply, the Full Bench considered that the Agreement required an assessment of whether the conduct was bullying within the meaning of s 789FC of the FW Act and if so, whether such conduct was serious misconduct akin to the definition of serious misconduct in the Fair Work Regulations.

The Full Bench said that for the purposes of s 789FC of the FW Act, it is sufficient that a person has behaved unreasonably at work on two occasions or more towards another and that has caused a risk to health and safety. However, it went on to say that consideration must be given to the gravity of the conduct, a critical element when considering what is serious misconduct. It is considered that some cases of bullying may not amount to misconduct, let alone serious misconduct, because bullying ranges across a spectrum of seriousness.

Ultimately it considered that “bullying and serious misconduct are two entirely distinct concepts for the purposes of the Agreement, as indeed they are generally….”.  It said that “marginal unreasonableness” should not condemn a person to the label of bully: an example may be where the person has acted unreasonably but could not have known of the risk to safety to the other person because the risk is peculiar to them.

The findings resulted in the decision at first instance being quashed and the matter remitted for the Commission to re-determine whether the conduct constitutes serious misconduct.

It is important to note that serious misconduct is defined under regulation 1.07 of the Fair Work Regulations to include conduct that is willful or deliberate and is inconsistent with the continuation of the employment contract and also conduct that causes serious and imminent risk to health and safety or to the reputation, viability or profitability of the employer’s business, engaging in theft, fraud, assault, or sexual harassment, intoxication at work and refusing to carry out a lawful and reasonable instruction that is consistent with the contract of employment.

Whether bullying conduct on the lower end of the spectrum of seriousness would amount to serious misconduct for the purposes of the Regulation, common law or otherwise will always be a question of fact.

Lessons for employers

With the upsurge in bullying claims, the case is a timely reminder to ensure that a blanket approach cannot be taken by employers to inappropriate workplace conduct, including where allegations of bullying have been substantiated. 

Employers should always ensure that they carefully consider, in the circumstances of the case, each of the following matters:

• What is the definition of bullying that applies?

• What is the definition of misconduct and or serious misconduct that applies?

• Is the definition of misconduct by reference to the common law, the Fair Work Regulations or some other standard imposed by the contract of employment or otherwise set out in the employer’s policies?

• Do the findings of any investigation and report disclose bullying in accordance with the applicable definitions?

• Does the substantiated conduct amount to serious misconduct as applicably defined?

• Does the finding of misconduct and or serious misconduct justify the sanction to be employed against the offending employee?

Ultimately, not all bullying is equal - in assessing whether bullying conduct is of such a serious nature which, on the spectrum, justifies a finding of serious misconduct (and disciplinary action) will always be a difficult assessment that requires close examination of the particular facts and evidence in each case as against applicable definitions and standards.

And even if the outcome is not disciplinary action, like a dismissal or other punitive action, as an employer some response will nevertheless be necessary to ensure safety – whether it be re-training, conflict resolution or other action in setting expectations and standards.

Need guidance on managing workplace bullying or serious misconduct? Contact Bartier Perry’s Employment Law team for expert advice tailored to your organisation.

Author: Sylvia Moses

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.