Bullying, Discrimination and Sexual Harassment

Contact Details

There is no place for bullying, discrimination or sexual harassment in the workplace. No matter where they work every employee is entitled to be treated with respect and dignity. This package explains what bullying, discrimination and sexual harassment are, your legal rights and the possible recourses available to you. It also emphasises that all three are prohibited by law and should not be tolerated in the workplace.

  1. Introduction
  2. Definitions: workplace bullying and sexual harassment
  3. The legal position
  4. Responsibilities of the hospital, college and individual
  5. Procedure

Introduction:

AMA Queensland aims to promote a working environment where all forms of bullying, discrimination and sexual harassment are regarded as unacceptable, and any incidents arising from such behaviour are not tolerated.

Definitions: Bullying, Discrimination and Sexual Harassment

What is bullying?

Under the Fair Work Act, a worker is bullied at work if:

  • a person or group of people repeatedly act unreasonably towards them or a group of workers
  • the behaviour creates a risk to health and safety.

Unreasonable behaviour includes victimising, humiliating, intimidating or threatening. Whether a behaviour is unreasonable can depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances.

What kind of behaviour constitutes bullying?

Examples of behaviour, whether intentional or unintentional, that may be considered to be workplace bullying if they are repeated, unreasonable and create a risk to health and safety include but are not limited to:[1]

  • Abusive, insulting or offensive language or comments
  • Unjustified criticism or complaints
  • Deliberately excluding someone from workplace activities
  • Withholding information that is vital for effective work performance
  • Setting unreasonable timelines or constantly changing deadlines
  • Setting tasks that are unreasonably below or beyond a person’s skill level
  • Denying access to information, supervision, consultation or resources to the detriment of the worker
  • Spreading misinformation or malicious
  • Changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers

A single incident of unreasonable behaviour is not considered to be workplace bullying, however it may have the potential to escalate and should not be ignored.

If workplace bullying behaviours involve violence, for example physical assault or the threat of physical assault, it should be reported to the police.

Reasonable management action taken in a reasonable way is not workplace bullying. If an employee has obvious performance problems managers and supervisors are expected to identify them and deal with them in a constructive way that does not involve personal insults or derogatory remarks. 

What is discrimination?

Discrimination occurs when you are treated unfairly because of your:[2]

  1. Sex
  2. Relationship status
  3. Pregnancy
  4. Parental status
  5. Breastfeeding
  6. Age
  7. Race
  8. Impairment
  9. Religious belief or religious activity
  10. Political belief or activity
  11. Trade union activity
  12. Lawful sexual activity
  13. Gender identity
  14. Sexuality
  15. Family responsibilities
  16. Association with, or relation to, a person identified on the basis of any of the above attributes

Discrimination can either be direct or indirect. Direct discrimination occurs when a person (or group of people) is singled out for worse treatment, compared to others in similar circumstances, because of one or more attributes.

Indirect discrimination occurs when there is a requirement (a rule, policy, practice or procedure) that is the same for everyone but has an unequal or disproportionate effect on a particular groups or groups.  If the treatment is not ‘reasonable in all the circumstances’, it is likely to be indirect discrimination.  The law measures whether a requirement is ‘reasonable’ by balancing the reason for having the requirement against its discriminatory effect – including the numbers of people disadvantaged by it and the degree of that disadvantage.  The law will then consider whether there is some fairer way of achieving the same aims.

What kind of behaviour constitutes discrimination?

Direct discrimination may involve:[3]

  • Making offensive ‘jokes’ about another worker’s racial or ethnic background, sex, sexuality, age or impairment
  • Expressing negative stereotypes about particular groups or using stereotypes as a basis for decisions about work
  • Using selection processes based on irrelevant attributes such as age, race or impairment rather than on skills needed for the job

Indirect discrimination can include:

  • Requiring everyone to be available for night shift
  • Only hiring people over 190cm tall

What is sexual harassment?

Sexual harassment is behaviour of a sexual nature which makes another person feel humiliated, intimidated or offended.

It occurs when:

  • a reasonable person would have anticipated that his or her behaviour would be unwelcome; and
  • the reaction of the person who is offended by that behaviour is reasonable.

Sexual harassment can occur when the person engaging in unwelcome behaviour did not intend to humiliate, intimidate or offend. It can also occur when the unwelcome behaviour may not offend all persons in the workplace or has been an accepted part of the workplace. If the behaviour is consensual, welcome and reciprocated, it is not sexual harassment.

What kind of behaviour constitutes sexual harassment?

Sexual harassment can include:[4]

  • Comments about a person’s private life or the way they look
  • Sexually suggestive behaviour, such as leering or staring
  • Brushing up against someone, touching, fondling or hugging
  • Sexually suggestive comments or jokes
  • Displaying offensive screen savers, photos, calendars or objects
  • Repeated requests to go out
  • Requests for sex
  • Sexually explicit emails, text messages or posts on social networking sites

The Legal Position:

Workplace Bullying:

The Fair Work Commission (for workers covered by the Fair Work Act 2009) or the Queensland Industrial Relations Commission can make orders to stop workplace bullying if there is a risk that the worker will continue to be bullied at work by the particular individual or groups. However, they will generally require that the person fulfil all internal complaint processes prior to accepting the complaint.

Discrimination:

Discrimination is illegal under the Anti-Discrimination Act 1991 (Qld),[5] and under various Federal Acts.

Sexual Harassment:

Sexual harassment is illegal under the Anti-Discrimination Act 1991 (Qld)[6] and the Sex Discrimination Act 1984 (Cth) (Federal Act).

Responsibilities:

Hospital:

The employing hospital can be liable where its workers or agents engage in bullying, discrimination or sexual harassment. However, if the hospital can demonstrate that it took reasonable steps to prevent the worker or agent committing the behaviour then they will not be liable.

College:

Medical colleges can be liable where its workers or agents engage in bullying, discrimination or sexual harassment. However, if the college can demonstrate that it took reasonable steps to prevent the worker or agent committing the behaviour then they will not be liable.

Individual:

An individual can be held personally liable for bullying, discrimination and sexual harassment.

Procedure: Workplace Bullying:

Once you believe that you have experienced workplace bullying, as defined above, you are able to make an internal complaint in accordance with your organisation’s workplace bullying policy. If your complaint is not satisfactorily handled then you have the option to lodge a complaint to the Queensland Industrial Relations Commission (if you’re an employee of Queensland Health) or to the Fair Work Commission (if you’re a national system employee).

Discrimination:

Once you believe that you have experienced discrimination, as defined above, you should refer to your organisation’s policies and procedures. You also have the option of lodging a complaint with the Anti-Discrimination Commission Queensland or Australian Human Rights Commission.

Sexual Harassment:

Once you believe that you have experienced sexual harassment, as defined above, you should refer to your organisation’s policies and procedures. You also have the option of lodging a complaint with the Anti-Discrimination Commission Queensland or Australian Human Rights Commission.

How AMA Queensland can help:

If you believe that your organisation has not handled your complaint properly, or you need support and representation, contact AMA Queensland. Our team of specialised industrial relations advisors can help support you at this difficult time.

We appreciate that this may be a difficult time, both emotionally and financially, and you may wish to contact the Doctors’ Health Advisory Service (Queensland) on 07 3872 2256 to speak confidentiality with another health practitioner. If an incident of sexual harassment, bullying or discrimination has affected your ability to work you are able to contact the Medical Benevolence Association of Queensland on 07 3872 2222 to apply for emergency financial assistance.

Page last updated 19 June 2015


[1] Ibid

[2] https://www.qld.gov.au/jobs/entitlements/pages/discrimination.html; Section 7 Anti-Discrimination Act 1991 (Qld):

[3] https://www.adcq.qld.gov.au/resources/other-resources/employers-toolkit/sample-policy-discrimination-and-sexual-harassment

[5] Section 118

[6] Ibid