Workplace bullying remains one of Australia’s most persistent and costly occupational hazards. According to data from Safe Work Australia, nearly one in ten Australian workers report being bullied on the job, and the Productivity Commission has estimated the annual cost to the economy at between $6 billion and $36 billion in lost productivity, absenteeism, staff turnover, and compensation claims. Behind those figures are real people โ employees dreading Monday mornings, managers navigating increasingly hostile team dynamics, and organisations haemorrhaging talent and morale.
For many of those affected, the formal complaint pathways can feel almost as daunting as the bullying itself. Internal grievance processes may lack independence. Fair Work Commission applications are limited in the remedies they can provide. Workers’ compensation claims address the injury but not the underlying workplace relationship. This is where mediation offers something fundamentally different: a confidential, flexible, and forward-looking process that can address the root causes of bullying behaviour and help rebuild functional working relationships. At Mediations Australia, our accredited workplace mediators help employees and employers across the country resolve bullying complaints constructively, before they escalate into tribunal proceedings, psychological injury claims, or irretrievable breakdowns in the employment relationship.
What Constitutes Workplace Bullying Under Australian Law
Understanding the legal definition of workplace bullying is an important starting point for anyone considering how to respond to a complaint. Under the Fair Work Act 2009 (Cth), a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety. The two critical elements are that the behaviour must be repeated and that it must be unreasonable when assessed objectively โ that is, whether a reasonable person, having regard to all the circumstances, would consider it unreasonable.
Importantly, the legislation explicitly excludes reasonable management action carried out in a reasonable manner. This means that legitimate performance management, fair allocation of duties, rostering decisions, and genuine organisational restructuring do not constitute bullying, even if the employee finds them unwelcome or stressful. This distinction often sits at the heart of workplace bullying disputes and is one of the reasons these complaints can be so difficult to resolve through internal processes alone.
Examples of behaviour that may constitute workplace bullying include repeated verbal abuse or intimidation, deliberate exclusion from workplace activities or information, unreasonable workloads designed to set someone up to fail, spreading malicious rumours, and persistent undermining of a person’s work or professional standing. The behaviour does not need to be identical each time โ a pattern of different unreasonable behaviours directed at the same worker can satisfy the legal definition.
Under the Work Health and Safety Act 2011 and the model Code of Practice on Managing Psychosocial Hazards, which commenced in 2024, employers have a positive duty to identify, assess, and control psychosocial risks in the workplace. Conflict and poor workplace relationships are specifically listed among the 17 identified psychosocial hazards. This means that failing to address bullying is not merely a human resources issue โ it is a work health and safety compliance obligation that can attract significant penalties.
The Limitations of Formal Complaint Pathways
When an employee experiences workplace bullying, several formal avenues are available. Each has its place, but each also has significant limitations that mediation can help address.
Internal Grievance Processes
Most organisations have internal complaint or grievance procedures, and these should generally be the first port of call. However, internal processes often suffer from real or perceived conflicts of interest, particularly when the alleged bully is a senior manager or when the HR function is closely aligned with the leadership team. Employees may fear retaliation, doubt that the investigation will be impartial, or feel that the process is designed to protect the organisation rather than resolve their complaint. Even when investigations are thorough and fair, they tend to produce findings and recommendations rather than genuine resolution of the interpersonal conflict that gave rise to the complaint.
Fair Work Commission Stop Bullying Orders
Under Part 6-4B of the Fair Work Act 2009, a worker who believes they have been bullied at work can apply to the Fair Work Commission for an order to stop the bullying. The Commission must begin dealing with the application within 14 days. If satisfied that the worker has been bullied and that there is a risk the bullying will continue, the Commission may make any order it considers appropriate to prevent the bullying from continuing.
However, there are important limitations. The Commission cannot order the payment of compensation โ no monetary remedy is available through this pathway. The applicant must still be employed by the organisation at the time of the application, meaning that workers who have already resigned or been dismissed cannot use this mechanism (though they may have recourse to unfair dismissal or general protections claims). The process can also be adversarial, with formal hearings and cross-examination of witnesses, which can further damage already strained workplace relationships.
The FWC itself recognises these constraints. In practice, the Commission frequently directs bullying applications to conciliation or mediation before proceeding to a formal hearing. This reflects the understanding that many bullying complaints are better resolved through facilitated dialogue than through quasi-judicial determination.
Workers’ Compensation Claims
Psychological injury claims arising from workplace bullying have been rising steadily across Australian jurisdictions. Comcare data shows that mental stress claims, while representing only around 7 per cent of all claims, account for approximately 27 per cent of total claims costs โ with the average psychological injury claim costing around $115,000, significantly more than the average physical injury. Workers’ compensation addresses the injury sustained by the worker, but it does not resolve the underlying workplace dynamics, hold anyone accountable for their behaviour, or create conditions for a safe return to work. In many cases, a workers’ compensation claim runs in parallel with, rather than instead of, a need for dispute resolution.
How Mediation Addresses Workplace Bullying Differently
Mediation offers a fundamentally different approach to resolving bullying complaints. Rather than determining fault, imposing penalties, or issuing binding orders, mediation creates a structured environment in which the people involved can address what happened, understand its impact, and develop practical agreements for how they will work together going forward โ or, where necessary, agree on terms for a respectful separation.
Addressing Root Causes, Not Just Symptoms
Workplace bullying rarely occurs in a vacuum. It often emerges from poor communication patterns, unclear role boundaries, management styles that lack self-awareness, organisational cultures that tolerate or reward aggressive behaviour, or the cumulative stress of restructuring and change. Formal complaint processes tend to focus narrowly on whether specific incidents meet the legal definition of bullying. Mediation, by contrast, allows a broader exploration of the circumstances that contributed to the conflict. This means the resolution is more likely to address the systemic issues, not just the presenting complaint.
Preserving the Employment Relationship
One of the most significant advantages of mediation is its capacity to preserve working relationships. In many bullying cases, the complainant does not actually want the other person dismissed or punished โ they want the behaviour to stop and to feel safe and respected at work. Mediation provides a space to communicate this directly, for the other party to hear the impact of their behaviour, and for both parties to agree on specific changes going forward. This is particularly important in small teams, regional workplaces, or specialised industries where the parties may have limited alternative employment options and a genuine interest in finding a workable path forward.
Confidentiality
Unlike tribunal proceedings, which may result in published decisions, mediation is entirely confidential. Nothing said during the mediation can be used in subsequent legal proceedings without the consent of both parties. This confidentiality encourages honest and open communication, allows parties to make concessions without fear that those concessions will be held against them, and protects both the complainant and the respondent from the professional and reputational damage that can accompany public proceedings.
Speed and Cost-Effectiveness
The Fair Work Commission’s 2023โ24 annual report revealed a record 40,188 applications in a single year โ a 27 per cent increase on the prior period. Against this backdrop, formal tribunal processes inevitably involve delays. Mediation, by comparison, can typically be arranged within one to two weeks and concluded in a single session. The cost of mediation is a fraction of what either party would spend on legal representation for tribunal proceedings, and the time away from productive work is measured in hours rather than weeks or months.
Empowerment and Ownership of Outcomes
In formal proceedings, outcomes are imposed by a third party โ the investigator, the tribunal member, or the judge. In mediation, the parties themselves craft the solution. Research consistently shows that agreements reached through genuine participation are more durable and more likely to be complied with than outcomes imposed externally. When both parties have had a meaningful say in the resolution, they are more invested in making it work.
When Mediation Is Appropriate for Bullying Complaints
Mediation is not appropriate for every bullying situation, and a responsible mediator will always assess suitability before proceeding. Mediation is generally well suited to bullying complaints where the parties have an ongoing working relationship that both wish or need to maintain, where the behaviour may stem from miscommunication, cultural differences, or management style issues rather than deliberate malice, where the power imbalance between the parties can be managed through skilled facilitation, where both parties are willing to participate voluntarily and in good faith, and where there is no immediate risk to physical safety.
Mediation may not be appropriate where the alleged bullying involves criminal conduct such as assault or serious threats, where there is such a significant power imbalance that one party cannot meaningfully participate, where one party is unwilling to engage or has demonstrated a pattern of using processes manipulatively, or where the organisation needs a formal finding for compliance or disciplinary purposes.
Even in cases where a formal investigation is necessary, mediation can play a valuable complementary role โ either before the investigation to attempt early resolution, or after the investigation to help implement findings and rebuild the workplace relationship. This dual approach is increasingly recognised by workplace mediators and HR professionals as best practice.
What the Mediation Process Looks Like for Bullying Complaints
The mediation process for a workplace bullying complaint follows a structured but flexible format designed to ensure safety, fairness, and the best chance of reaching a sustainable agreement.
Intake and Suitability Assessment
The mediator conducts confidential individual sessions with each party before the joint mediation. During these sessions, the mediator assesses whether mediation is appropriate, identifies any safety concerns, explains the process and ground rules, and begins to understand each party’s perspective and interests. If the mediator determines that mediation is not appropriate โ for example, due to safety risks or an unwillingness to participate genuinely โ they will decline to proceed and may recommend alternative pathways.
The Mediation Session
The joint session begins with the mediator setting the framework: explaining confidentiality, confirming the voluntary nature of the process, and establishing ground rules for respectful communication. Each party is given an uninterrupted opportunity to share their perspective. The mediator then facilitates a structured conversation, guiding the parties through the issues, helping them understand each other’s experience, and supporting them in generating options for resolution.
Private sessions (caucuses) are used throughout the process, allowing each party to speak candidly with the mediator, explore their underlying interests, and consider proposals without the pressure of the other party’s immediate presence. In bullying cases, private sessions are particularly important for managing emotional intensity and ensuring that both parties feel heard and safe.
Agreement and Follow-Up
If the parties reach agreement, the mediator assists in documenting the terms. A workplace bullying mediation agreement might include specific behavioural commitments from one or both parties, changes to reporting lines, team structures, or communication protocols, agreements about performance management processes, a plan for ongoing support such as coaching or counselling, a review date to assess whether the agreed changes are working, and confidentiality obligations regarding the complaint and its resolution.
The resulting agreement, while not a court order, is a binding contract between the parties. Mediations Australia can help ensure that agreements are properly documented and enforceable, providing both parties with confidence that their commitments will be honoured.
The Employer’s Role and Obligations
Employers have a critical role to play in both preventing bullying and facilitating its resolution. Under the model Work Health and Safety laws and the 2024 Code of Practice on Managing Psychosocial Hazards, employers must proactively identify and manage psychosocial risks โ including workplace conflict and bullying โ as part of their health and safety obligations. Waiting for a formal complaint before taking action is no longer sufficient.
Integrating mediation into an organisation’s dispute resolution framework is one of the most effective ways to meet these obligations. By offering mediation as an early intervention when bullying concerns are raised, employers demonstrate a genuine commitment to resolving issues constructively, reduce the risk of escalation to formal proceedings, and protect both the wellbeing of their workers and their own legal exposure.
The Fair Work Commission’s approach to workplace disputes, including its emphasis on conciliation before formal hearings, reinforces the expectation that employers will engage meaningfully in alternative dispute resolution rather than defaulting to adversarial processes.
Support Services and Resources
Workplace bullying can have serious impacts on mental health and wellbeing. If you are experiencing bullying at work and are struggling, the following services can provide support:
- Lifeline: 13 11 14 (24/7 crisis support)
- Beyond Blue: 1300 22 4636
- 1800RESPECT: 1800 737 732 (for workplace harassment involving sexual harassment or gendered violence)
- Safe Work Australia: Information and resources on workplace bullying prevention and response
- Fair Work Commission: Information on stop bullying orders and the application process
- Fair Work Ombudsman: Guidance on workplace rights and obligations
Taking the Next Step
Workplace bullying complaints do not have to end in tribunal hearings, resignations, or fractured teams. Mediation offers a proven, practical, and human-centred pathway to resolution that addresses both the immediate complaint and the workplace conditions that allowed it to develop. Whether you are an employee seeking to resolve a bullying experience, a manager trying to restore a functional team, or an employer looking to meet your psychosocial safety obligations, professional mediation can help.
At Mediations Australia, our workplace mediators are experienced in handling sensitive bullying complaints with the skill, neutrality, and care these matters require. We work with both employees and employers across Australia, in person and online, to find resolutions that are fair, practical, and sustainable. Contact us today for a free, confidential consultation.
This article is for general information purposes only and does not constitute legal advice. For personalised guidance regarding your specific situation, please consult a qualified legal professional or accredited mediator.
