77 - What is bullying?

Whitham 2026: What Counts as Workplace Bullying Under the Fair Work Act (and What Doesn’t)

Melissa Bush explains a 2026 Fair Work Commission decision in Whitham, where an employee alleged bullying based on confusing training, dress code enforcement, questions about illness, being contacted while sick, negative work remarks, inadequate home internet, and a request to consent to contacting his doctor. The deputy president dismissed the application ex tempore in a two-paragraph decision, finding none of the conduct unreasonable, no risk to health and safety, and noting the Commission cannot order compensation. The episode outlines the Fair Work Act’s three-part bullying definition (repeated, unreasonable conduct creating a health and safety risk) and the exclusion for reasonable management action carried out reasonably, emphasizing the regime is designed only for stop-bullying orders in ongoing employment relationships. It also notes NSW’s enforceable psychosocial hazards Code of Practice from 1 July 2026 and distinguishes WHS psychosocial duties from Fair Work bullying claims.

00:00 Bullying Claim List

00:50 Why Bullying Matters

01:35 Show Intro Disclaimer

02:44 Stop Bullying Regime Basics

03:23 Legal Definition Test

04:32 Reasonable Management Action

05:46 Commission Powers Limits

06:49 Whitham Case Facts

07:54 Two-Paragraph Decision

08:45 Why Each Allegation Failed

11:15 Employer Takeaways Checklist

12:27 NSW Psychosocial Duties

14:24 Wrap-Up Resources

Application by Gary Whitham [2026] FWC 3322:  fwc.gov.au/document-view/decisions/application-by-mr-gary-whitham-2026-fwc-3322

Fair Work Act 2009, s.789FD (definition of bullying):  https://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789fd.html

Fair Work Act 2009, s.789FG (reasonable management action carve-out):  https://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789fg.html

Fair Work Commission — anti-bullying guidance:  fwc.gov.au/apply-or-lodge/forms-and-documents/online-guides/anti-bullying

SafeWork NSW — psychosocial hazards code of practice:  safework.nsw.gov.au