Bullying is, without a doubt, a damaging experience for the target. However, is bullying illegal? That question is far harder to answer.

The law responds to bullying in a number of ways.

Please note that the following is provided for general information only and does not constitute legal advice. For advice on your circumstances, please seek help from a qualified professional.

Investigation by regulatory body

After informal procedures have failed, the first port of call for many victims of bullying is the workplace health and safety regulatory body.

Employers have an obligation to eliminate or minimise risks in the workplace, including those relating to bullying.

Investigations by the regulatory body aim to improve practice at a workplace rather than addressing a situation or mediating between individuals.

The regulatory body is primarily interested in whether the employer has put policies and procedures in place to prevent bullying.

For some targets of bullying, and accused bullies seeking to clear their name, this impartial attitude can be incredibly frustrating.

Outcome: Most investigations will end with recommendations from the regulatory body to the employer. Employers may be given a warning if these recommendations are not carried out.

If the employer’s failure to provide a safe environment was particularly severe, the authority may bring a case against the employer in court. Punishments could be anything from a fine to jail time. Fines imposed on employers are collected by the state rather than the bullying victim.

Fair Work investigation

As of 1 January 2014, the Fair Work Commission will be the authority receiving complaints and investigating bullying claims.

How this will be implemented on a practical level is unknown. Indeed, a change of government could reverse this reform before it even starts operating.

Criminal case

Contrary to popular belief, victims of crime cannot “press charges” or initiate criminal proceedings. The state must decide whether it is in the public interest to charge someone with a crime.

In particularly serious bullying cases, criminal charges may be deemed appropriate.

In most states, this would be limited to cases of violence, threats of violence or “stalking” behaviour like following someone home.

In Victoria, behaviour similar to workplace bullying was made a criminal offence after a Melbourne café worker, Brodie Panlock, was driven to suicide by bullies.

The case led to an amendment to the stalking provisions under Victoria’s criminal code. Stalking now includes offensive or abusive acts, and acts that could reasonably be expected to cause the victim to self-harm, provided that the bully had the intention of causing harm.

Outcome: The penalty for stalking in Victoria is a maximum of ten years jail.

However, since the law was introduced, not a single case of workplace bullying has come before the courts.

This could be partially due to the difficulty of proving someone’s intentions. It may also be difficult to show that self-harm was caused by bullying rather than other factors, such as mental health issues.

Civil case under the Fair Work Act

Civil cases refer to cases initiated by one person (or company) against another, or by a person against the government.

A person who feels that bullying has violated their workplace rights may be able to bring a civil case against their employer under the Fair Work Act.

Workplace rights include any benefits or responsibilities guaranteed under a workplace law, such as minimum wages or union representation.

The focus would be on whether an employment right was violated, rather than whether an employee was bullied.

Alternatively, an employee could argue that their employer fired, demoted or made them worse off because they asserted an employment right.

Outcome: The bullied person is able to bring the case themselves and will also collect any damages resulting from a successful outcome. However, they may be liable for the other party’s legal fees if their case is unsuccessful.

Civil case for breach of contract

In limited circumstances, a victim of bullying may be able to sue their employer for breach of contract.

The person would have to prove that their employment contract included protections against bullying that the employer failed to honour. Such cases are relatively rare.

Outcome: Once again, as this is a civil case, damages would go to the victim but the person also risks being financially responsible for the other party’s legal fees.

Other legal avenues exist for specific circumstances, such as unfair dismissal, sexual harassment or discrimination.

Ultimately, the legal response to bullying is limited. A victim of bullying can only bring a case against their employer for allowing bullying in certain specific circumstances. Unless the bully is also the employer, there are no options where a person can sue their bully directly.

Employers are also unable to be compensated for the costs to their business associated with bullying.

Criminal charges exist but the state rarely exercises that option.

On one hand, it may be that most bullying behaviour, while upsetting, falls short of what should be legally punished. On the other, bullying can have devastating effects on a person’s life, their health and their relationships.

Whether the Fair Work Commission will provide a better legal option for victims of bullying in the future remains to be seen.