Bullying, harassment and sexual harassment
This module looks at bullying, harassment and sexual harassment from one angle only: when an employer dismisses the person who did it. Each is tested differently, and none of them is proved by the label in the termination letter.
What you’ll be able to do
- Tell workplace bullying, harassment and sexual harassment apart as legal tests, not just as words in a policy.
- Apply the objective test for sexual harassment correctly — including why the alleged harasser’s own intent doesn’t answer the question.
- Recognise why this module’s treatment of the “positive duty” under the Sex Discrimination Act needs a currency check before you rely on it.
Three different things, one angle
This module is about conduct dismissals: the employer says the employee bullied or harassed someone, and dismissed them for it. That is a completely different question from an employee bringing their own application — a stop-bullying order under s.789FC, or a sexual harassment application under Part 6-4B of the FW Act — against the employer or a colleague. Those are different jurisdictions with different tests and different remedies. This module doesn’t cover them; it only flags that they exist, because an adviser handling a conduct dismissal should know the complainant may have a separate avenue open to them.
Workplace bullying as a conduct ground
Workplace bullying has a specific legal shape: an individual or group repeatedly behaves unreasonably towards a worker, and that behaviour creates a risk to health and safety. A single incident, on its own, is not enough — even a serious one.
That test cuts both ways. Where it’s made out, bullying conduct is a valid reason for dismissal:
- Bale v Centrex — Mr Bale sent emails to a colleague that were, on their face, belittling and insulting [2024] FWC 3231 at [2]. The Commission found this conduct was serious and self-evidently a valid reason for dismissal [2024] FWC 3231 at [109].
- Pawelczyk v Commonwealth Bank of Australia — Mr Pawelczyk sent more than 50 messages to his manager over six days after she asked him to stop. It did not matter whether he intended harm; later she effectively begged him to cease what she felt was harassment [2024] FWC 2115 at [11]. The Commission found a valid reason for his dismissal [2024] FWC 2115 at [56].
But where the test isn’t met, there’s no valid reason — even if the employer’s policy uses the word “bullying”:
- Walsh v Unitywater — allegations arose from a single heated exchange after a colleague’s promotion. The Commission found the evidence didn’t support a finding that the conduct was repeated and unreasonable, or that it created a risk to health and safety, so it didn’t rise to workplace bullying [2025] FWC 2853 at [176]. There was no valid reason for the dismissal [2025] FWC 2853 at [178].
The adviser’s question: can you point to a pattern, not an incident, and to an actual risk to health and safety, not just hurt feelings or an awkward moment?
Sexual harassment as a conduct ground
The legal meaning of “sexually harass” comes from s.28A of the Sex Discrimination Act 1984 (Cth) [2023] FWC 1997 at [62]: an unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature, in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated. It’s an objective test.
That matters for how an adviser frames the allegation:
- Intent is irrelevant. Whether the alleged harasser meant harm, or thought the conduct was consensual, doesn’t answer whether a reasonable person would have anticipated that reaction [2023] FWC 1997 at [70].
- It’s conduct that will ordinarily justify dismissal. In Swift v Highland Pine Products, the Commission found Mr Swift sexually harassed three colleagues over an extended period [2023] FWC 1997 at [67], and held that sexual harassment is conduct of the kind that will ordinarily justify dismissal [2023] FWC 1997 at [68].
- Separate incidents can land differently. In Josey v OS MCAP, the Commission found that conduct on a flight constituted sexual harassment, while a separate incident constituted harassment that wasn’t sexual in nature [2024] FWC 2731 at [154]. Applying the objective test, the Commission found a reasonable person would have anticipated the complainant would be offended, humiliated or intimidated [2024] FWC 2731 at [150], and found a valid reason for dismissal [2024] FWC 2731 at [156].
For serious or disputed allegations, the Commission takes care before making the finding — the same heightened caution over inexact proof and indirect inference that applies to any serious misconduct allegation (see Module 5). A sexual harassment finding still has to be made on the evidence, not assumed from the label.
Check current law before relying on this section. The “positive duty” on employers to eliminate sexual harassment, sex discrimination and related conduct was introduced by the Respect@Work reforms to the Sex Discrimination Act 1984 (Cth) — a significant, relatively recent change. This module’s drafting pass did not independently verify the current wording, section numbering or commencement date of that duty against the Act itself; law_current_as_at is deliberately left unset in this module’s frontmatter for that reason. Treat everything below as a description of how FWC decisions in the corpus have talked about the duty, not as a current statement of the law.
Decisions in the corpus describe the positive duty’s purpose, drawing on the Explanatory Memorandum to the Respect at Work reforms, as shifting the focus from employers responding to conduct that has already occurred, to requiring employers to proactively prevent discrimination and harassment in their workplaces [2026] FWC 1551 at [29]. That decision is an enterprise-agreement dispute about how an employer handled a sexual harassment complaint, not an unfair dismissal matter — it’s cited here only for that explanation.
In unfair dismissal matters, the duty has started to appear as part of why sexual harassment is treated as a serious conduct ground: in Swift, the Commission said that employers have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sexual harassment, and that this duty applied to the employer at the time of the dismissal [2023] FWC 1997 at [68]. But Swift’s own dismissal took place well before the decision was handed down — a timing detail that, on its own, should prompt an adviser to check exactly when the duty commenced, rather than assume every post-2022 decision is applying it to a dismissal that occurred after it took effect. In Smout v BHP Coal, the employer’s own submission (not an independent finding) invoked “its positive duty to prevent or eliminate workplace sexual harassment” [2024] FWC 2062 at [106], and in Josey v OS MCAP the Commission simply noted a similar submission without independently testing it [2024] FWC 2731 at [155].
The practical point for an adviser: don’t build an argument on “the employer has a positive duty, therefore X” without first checking the Act’s current text and commencement provisions yourself. This is exactly the kind of recent, fast-moving area where last year’s summary can be wrong.
What the Commission looks for
- The right test for the right label. Bullying needs repetition and a health-and-safety risk; sexual harassment needs unwelcome conduct of a sexual nature assessed objectively. Don’t let a termination letter’s choice of word substitute for which test actually applies.
- Contemporaneous evidence, not a characterisation written after the fact: messages, dated complaints, witness accounts of what was actually said or done.
- The reasonable-person test, not the respondent’s account of their own intent — “I didn’t mean it that way” or “I talk to everyone like that” doesn’t answer the legal question.
- A genuine process, run at a pace driven by fairness to the employee, not by a deadline that suits the employer.
How bullying and harassment dismissals fail
The conduct didn’t meet the legal bar
A heated, one-off exchange after a colleague’s promotion was treated as workplace bullying. The evidence didn’t show repetition or a risk to health and safety. [2025] FWC 2853 at [176]
A strong label (“bullying”) isn’t a substitute for the statutory elements. Check repetition and the health-and-safety risk separately.
Valid reason, but the process was rushed for convenience
Sexual harassment was proven and gave a valid reason to dismiss. But the process was compressed because of an impending ownership transfer and nobody wanting to work over a long weekend — not because of anything about the employee. [2024] FWC 2062 at [181]-[182]
Even a well-proven conduct case can still produce an unfair dismissal if the employer’s own scheduling convenience drives the process.
“I didn’t mean it that way” isn’t the test
An employee argued he sent similar messages to friends and relatives and didn’t think they were inappropriate. The Commission applied the objective test regardless of his own view. [2023] FWC 1997 at [69]-[70]
When advising on the allegation, frame it around what a reasonable person would think, not around what the respondent says they meant.
Adviser checklist
- Characterising the conduct
- Evidence
- The respondent's account
- Process
- Currency
- Scope
Practice scenario: the after-hours messages
Fictional scenario. Write your answers, then reveal the model answer.
Deon is a senior merchandising coordinator at a retail head office. Priya, a junior colleague, reported to HR that over several weeks Deon repeatedly commented on her appearance in front of others and sent her personal messages outside work hours after she told him she wasn’t interested in socialising beyond work. There has been no physical contact alleged.
HR holds message records showing the pattern continued after Priya’s request to stop. Deon, when informally asked, says the comments were meant as compliments, that he talks to all his colleagues that way, and that he didn’t think anything of it.
- Possibly, under more than one test. The repeated, unwanted comments and messages after a clear request to stop could support a bullying finding (repeated, unreasonable, capable of creating a health-and-safety risk) and, depending on their content, could also meet the objective test for sexual harassment. Deon’s own view that he “didn’t mean anything by it” doesn’t resolve either question — both tests ask how the conduct would be viewed, not how he intended it.
- Missing: the actual content and dates of the comments and messages (not a paraphrase); whether Priya told Deon to stop and when; whether anyone witnessed the comments; whether Deon has made similar comments to other colleagues; and Deon’s full, considered response to specific examples, not just an informal reaction.
- Framing: set out specific dated messages and comments, state that they continued after Priya asked him to stop, and identify precisely which policy or conduct standard each instance breached — rather than a single broad allegation of “inappropriate behaviour”.
Non-dismissal outcome: the immediate response might be a properly scoped complaint process, interim risk control, conduct direction or facilitated resolution rather than a disciplinary finding. That depends on the evidence, the parties’ safety and wishes, the applicable sources and the organisation’s arrangements.
Decisions cited
Check every paragraph reference below against the published decision before relying on it. RTBU v Metro Trains Melbourne is an enterprise-agreement dispute, not an unfair dismissal decision, and is cited only for its explanation of the positive duty’s purpose. The positive-duty material throughout this module is explicitly unchecked for currency — see the flagged note above before relying on any of it.
| Decision | Outcome (confirmed from the text) |
|---|---|
| [2026] FWC 1551 RTBU v Metro Trains Melbourne | partialThis is an enterprise-agreement dispute under s.739 of the FW Act about an employer's handling of a sexual harassment complaint — not an unfair dismissal matter. It is cited here only for its explanation, drawn from the Revised Explanatory Memorandum to the Respect at Work reforms, of the purpose of the positive duty inserted into the Sex Discrimination Act 1984 (Cth) — confirmed at [29]. The Commission's ultimate findings on Metro's compliance with the enterprise agreement clause were not read in this pass and nothing about them is asserted here. [29] |
| [2025] FWC 2853 Walsh v Unitywater | The Commission found the evidence did not establish that Mr Walsh's conduct was repeated and unreasonable, or that it created a risk to health and safety, and so it did not rise to workplace bullying (a single heated, in-the-moment incident was not enough) — confirmed at [176]. The Commission was also not satisfied the conduct was discriminatory or constituted sexual harassment, and found no valid reason for the dismissal — confirmed at [177]-[178]. The dismissal was found unfair; reinstatement, continuity of service and compensation were ordered. [176] |
| [2024] FWC 3231 Bale v Centrex | Mr Bale sent emails to a colleague that were, on their face, belittling and insulting — confirmed at [2]. The Commission found this conduct was serious and self-evidently a valid reason for dismissal — confirmed at [109]. The application was dismissed; the dismissal was not unfair — confirmed at [110]-[111]. [109] |
| [2024] FWC 2731 Josey v OS MCAP | The Commission applied the employer's sexual-harassment definition (mirroring s.28A SDA) and found, on the balance of probabilities, that the Applicant's conduct on a flight constituted sexual harassment and a separate incident constituted (non-sexual) harassment — confirmed at [145], [150], [152] and [154]. The Commission noted the employer's submission about its legislated positive duty to eliminate sexual harassment — confirmed at [155] — and found a valid reason for dismissal — confirmed at [156]. The application was dismissed; the dismissal was not unfair. [152] |
| [2024] FWC 2115 Pawelczyk v Commonwealth Bank of Australia | Mr Pawelczyk sent more than 50 messages to his manager over six days; the Commission found it did not matter whether he intended to cause harm, and that the messages were deliberate and targeted — confirmed at [11]. The Commission found a valid reason for the dismissal — confirmed at [56] — and that the dismissal process was fair. The dismissal was not unfair. [56] |
| [2024] FWC 2062 Smout v BHP Coal | The Commission found the Applicant's conduct towards two colleagues was sexual harassment and that this gave the Respondent a valid reason to terminate — confirmed at [160]. The Respondent had submitted its action was consistent with its positive duty to prevent or eliminate workplace sexual harassment under the SDA — confirmed at [106]. Despite the valid reason, the Commission found the dismissal process was rushed purely for administrative convenience (an impending mine ownership transfer and an Easter long weekend), denying the Applicant a full opportunity to respond, and held the dismissal unfair overall — confirmed at [181]-[182]. [160] |
| [2023] FWC 1997 Swift v Highland Pine Products | The Commission set out the legal meaning of sexual harassment in s.28A of the Sex Discrimination Act 1984 (Cth) — confirmed at [62] — and found that Mr Swift sexually harassed three colleagues over an extended period — confirmed at [67]. The Commission held sexual harassment is conduct that will ordinarily justify dismissal, and that an employer's positive duty to eliminate sexual harassment applied to the respondent at the time of the dismissal — confirmed at [68]. Intent and consent were held irrelevant to whether the conduct was sexual harassment — confirmed at [69]-[70]. The application was dismissed; the dismissal was not unfair — confirmed at [93]-[94]. [67] |