Bullying Is Not Automatically “Serious Misconduct”

Many workers believe that if they're accused of bullying, they’ll be instantly sacked for serious misconduct. But a recent decision on appeal shows that it’s not that simple.

In Frost v Ambulance Victoria [2025], the Full Bench of the Commission overturned a ruling where bullying and serious misconduct had been wrongly treated as identical and essentially one of the same. The message returned was clear: bullying may justify consequences, but it is not automatically serious misconduct.

What Happened?

Mr Frost was the subject of a workplace investigation by Ambulance Victoria. The employer relied on the investigator’s finding that Mr Frost had engaged in bullying and decided to transfer him under a disciplinary clause of the enterprise agreement.

But that clause only permitted a transfer where the employee’s behaviour amounted to serious misconduct.

Mr Frost challenged the transfer, arguing that while he accepted the bullying finding, his behaviour did not meet the standard of serious misconduct.

The original Commissioner hearing the case made a mistake. He concluded that because bullying had occurred, it must follow that serious misconduct had occurred too. In the appeal, the Full Bench found this was an error of law.

At paragraph [22], the Full Bench stated:

“The Commissioner made an error of law by equating bullying conduct with serious misconduct.”

They went further at [24]:

“The Commissioner proceeded on the basis that a finding of bullying must mean that the relevant conduct amounts to serious misconduct. This is an error of law.”

The Key Distinction

The Fair Work Act defines bullying as repeated unreasonable behaviour that creates a risk to health and safety. But that can cover a wide range of conduct, not all of which is extreme.

As the Full Bench explained at [26]:

“Plainly, the gravity of conduct that can fall within the definition of bullying in the FW Act can be charted on a wide spectrum. Some such conduct is very serious. Some is not.”

“Simply put, cases of bullying may range across a spectrum of seriousness.”

In other words, bullying can vary from minor workplace friction to extreme and dangerous conduct. The fact that someone’s behaviour is classed as bullying doesn’t automatically give the employer the right to treat it as a sackable offence.

What This Means for Employees

1. Employers must assess the seriousness of conduct independently
They can’t substitute a bullying finding for a serious misconduct finding. The distinction matters.

2. A workplace label doesn’t define your rights
Just because your employer or an external investigator says you’ve bullied someone, doesn’t mean you’ve breached your contract or workplace policy to the level that warrants disciplinary action.

4. Bullying findings do not automatically justify dismissal or discipline
Each case must be assessed for whether the behaviour genuinely meets the high bar of serious misconduct — conduct so significant it justifies termination or demotion.

This case is a timely reminder that employers don’t get to skip legal steps just because they have a bullying finding. Misconduct needs to be properly assessed on its own terms. And for employees, it’s a sign that just because you’ve been accused — even found to have breached behavioural standards — your rights and protections under the law still apply.

If you’ve been accused of bullying and your employer jumps straight to punishment without proper justification, this case may help you challenge their decision — and get it overturned.