Victimisation in the workplace is when an individual faces negative treatment after making or supporting a complaint. It can include retaliation, bullying or exclusion by coworkers or superiors. In some cases it can even include work dismissal for speaking out. Victimisation is illegal in the workplace under the Equal Opportunity Act 2010, protecting workers from discrimination, sexual harassment and victimistion. Under the law, employers have a positive duty to protect employees from victimisation by providing a safe and inclusive workplace.
What is Victimisation in the Workplace?
The legal definition of ‘victimisation’ is to engage in conduct intending to cause, or causing, detriment to a person. In the workplace, victimisation is when a person is treated unfairly after making a complaint about sexual harassment, discrimination or unlawful treatment An employee can also be subjected to victimistion after supporting the complaint of a coworker. By speaking up, a person who is victimised may find they are suddenly ostracised or discluded at work, harassed or bullied, or receive unreasonable disciplinary actions.
Examples of Victimisation in the Workplace
Victimisation in the workplace may occur when a person has made a complaint about discrimination, harassment or unlawful behaviour. It may manifest in an employer warning someone about repercussions from making a complaint or even potential dismissal. Sometimes workers may face negative behaviours from fellow colleagues like inappropriate comments or ostracisation. Workers who are subjected to this type of behaviour are victimised and have the right to take legal action.
Types of victimisation
- Verbal and physical abuse: This may include insults, threats, spreading rumours, or name calling
- Physical action: Actions like damaging a coworkers work station or hiding the equipment needed to fulfil their role
- Workplace exclusion: Excluding a coworker from meetings, conversations or work events
- Hierarchical action: Demotion or dismissal after reporting an issue
- Intimidation: Behaviour like bullying that makes an employee feel unsafe or intimidated
Examples of victimisation
- A mature aged apprentice reports workplace bullying to his supervisor. The other workers repeatedly verbally abused him and played practical jokes. He tried to ignore it but it started to become bad for his mental health. Eventually, he went to his supervisor and told him of the bullying. The supervisor dismissed it as ‘boys being boys’ and then started to participate in the bullying. Eventually the apprentice resigned after being victimised for over 12 months.
- A woman witnesses a colleague at work being harassed because of her religion by some of the other workers. When the recipient of the harassment reports the issue, the witness stands by her side in the complaint. After that, she is treated with disdain from the other workers who socially isolated her and made comments under their breath. The workplace went from being an enjoyable space to a toxic environment because she supported someone’s rights under the anti-discrimination laws.
- A man makes a complaint about an unlawful act occurring within the workplace. He witnesses several of his colleagues drinking alcohol on the job which is interfering with their role. After submitting this complaint to his manager, he finds he is suddenly denied the promotion he was in line for. His manager explains it as ‘having a change of heart’ but the worker feels like he is being victimised for reporting his colleague’s behaviour.
Victimisation and Workplace Bullying
Victimisation can be closely linked to workplace bullying. Ongoing victimising acts like yelling or physically harming a person are considered a form of workplace bullying. Bullying may be belittling or undermining a person, verbal abuse, ignoring personal boundaries, or creating a hostile environment. When these unreasonable and intimidating behaviours are a result of someone asserting their rights, it is classified as victimisation. Bullying is the behaviour itself and victimisation is the discrimination that occurs when a worker asserts their legal rights in the workplace. The main factors about bullying are that it occurs frequently and it poses a risk to health and safety of the worker or workers.
Laws that Protect Against Victimisation
There are two laws that protect against victimisation in the workplace – the Equal Opportunity Act 2010 and the Fair Work Act 2009.
The Equal Opportunity Act 2010
Under the Equal Opportunity Act 2010, it is unlawful to discriminate, harass or victimise someone for speaking up about their rights, making or supporting a complaint, or refusing to do something contrary to the act.
The Equal Opportunity Act 2010 also includes a positive duty on employers to eliminate, as far as possible, discrimination, harassment and victimisation in the workplace. Employers have a duty of care to protect workers from unlawful discriminatory behaviour including acts of victimisation. To ensure compliance with the positive duty, employers must make sure that workers who make complaints or raise concerns are not discriminated against by themselves or their coworkers. They must ensure that any complaints are responded to quickly and professionally when they arise. To meet the positive duty, employers need to:
- Make sure policies and procedures are understood by the staff
- Train staff on acceptable and appropriate workplace behaviour
- Ensure policies are adhered to
- Use inclusive leadership strategies
- Keep up to date with the positive duty and what is expected of them
The Fair Work Act 2009
The Fair Work Act 2009 also protects workers from victimisation. Under this Australian law, the minimum entitlements and protections for most employees and employers are set out. The Fair Work Act 2009 makes it illegal for employers or coworkers to take adverse action against an employee because they have made a complaint. Adverse action includes treating an employee differently, demoting, dismissing or bullying. The Fair Work Act 2009 protects against victimisation by:
- Prohibiting adverse actions like firing or demotion from employers
- Defining workplace rights like the right to make a complaint
- Defining how to make a complaint
How to Respond to Victimisation
To respond to workplace victimisation, there are a few steps to follow from documenting the events to seeking legal advice. There are two avenues available to respond to victimisation. The first is to try to find a resolution within the workplace. The second is to go externally.
Within the workplace
- Keep a record of events, times and places with specific details of each victimisation. Keep emails, text messages or any communication relating to the incidents.
- If you feel safe, speak directly to the person who is harassing or bullying you. Tell them how it makes you feel and ask them to stop. If you do not feel safe, or do not want to approach the coworker, there is no obligation.
- Speak to a coworker or friend you feel comfortable with. Explain what is happening and ask them what they think. They may have noticed something and be willing to back up any complaints you might make.
- Go to your workplace supervisor or HR department and see what their procedures for bullying, harassment and victimisation are. Once you find out the process, lodge a formal complaint.
Outside the workplace
In the event that there is no resolution of the victimisation issue within the workplace, these external support networks are there to help.
- Worksafe Victoria: You can make a complaint to Worksafe Victoria if you are being victimised in the workplace. They are a health and safety regulator for workers in Victoria and ensure employers meet their obligations under health and safety laws in relation to bullying and victimisation.
- Fair Work Commission: As Australia’s national workplace relations tribunal, the Fair Work Commission resolves disputes in relation to victimisation and workplace bullying. You can apply to the commission for an order to stop bullying. The order is sent to the employer with details of the offence and they must respond within 7 days. The Fair Work Commission also offers mediation services between employer and employee.
- Fair Work Ombudsman: The Fair Work Ombudsman can help you with understanding your rights and obligations under the Fair Work Act. They can guide you through the process of how to resolve workplace issues especially if a Fair Work Commission stop bullying order has not been complied with at work.
- Victorian Equal Opportunity and Human Rights Commission: The Victorian Equal Opportunity and Human Rights Commission helps workers with complaints about discrimination, harassment and victimisation. It is an independent statutory body that provides a free dispute resolution service. It also educates people on their rights under the Charter of Human Rights and Responsibilities Act 2006.
- Australian Human Rights Commission: The Australian Human Rights Commission is an organisation that addresses workplace victimisation by addressing the positive duty obligations of organisations to create safer workplaces. This commission offers a free complaints service for those being victimised, discriminated against, harassed or bullied. Complaints can be made through a confidential process that will provide you with information and guidance on how to respond to the victimisation or unlawful conduct. To help you resolve your complaint, they use a conciliation process by facilitating communication between the victim and perpetrator of victimisation with the hope of finding a solution.
- Union: If you are a union member, contact your union representative and explain to them the situation. They will be able to help you decide which steps to take next.
- Lawyer: Seek legal advice if any of these support networks have been unable to find a resolution to the issue. You may want to seek legal advice if you have been dismissed unfairly or if you have been bullied and discriminated against, leading to your resignation.
If you have been subjected to bullying or harassing behaviour after making a complaint or standing up for your rights at work, you are being victimised. As an employee this is not something you need to tolerate. Victimisation is illegal in the workplace and employers have a positive duty to protect workers from unfair or unlawful behaviour. To find out more about rights and obligations at work, contact the team at Positive Duty.