The meaning of bullying ‘at work’

23 March 2015
A recent decision of the Full Bench of the Fair Work Commission (FWC) has defined the expression ‘at work’ within the anti-bullying provisions of the Fair Work Act 2009 (Cth).

By Mia Pantechis

Background

The anti-bullying provisions empower the FWC to make orders to stop bullying if (without limitation) ‘the worker has been bullied at work.’[1]

The Applicants, that is, three employees of DP World Melbourne Limited (DP World), made applications to the FWC seeking anti-bullying orders.

The Applicants alleged that a range of behaviours amounted to bullying, including but not limited to Facebook posts, exclusionary conduct and insulting comments.

An application by the Respondents were made to strike out several allegations on the basis that the alleged conduct did not occur ‘at work’.

Accordingly, the Full Bench was required to interpret the meaning of the phrase ‘at work’ within section 789FD of the Fair Work Act.

When is a worker ‘at work’?

The Applicants broadly defined the expression ‘at work’, submitting that conduct occurs ‘at work’ if it has a substantial connection to work.

The Full Bench, having regard to the ordinary meaning of the words, their context and legislative purpose, rejected the definition proffered by the Applicants. It held that:

‘…the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).’[2]

The Full Bench acknowledged that applying the definition of ‘at work’ in complex cases may be difficult. By way of example, the Full Bench considered a scenario where ‘a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours.’ In those circumstances, determining whether the worker is ‘at work’ will depend on the context, including ‘custom and practice, and the nature of the worker’s contract.’[3]

Is bullying behaviour on social media captured?

On the topic of bullying behaviour that occurs through the use of social media, the Full Bench clarified that a worker does not need to be ‘at work’ when comments are posted, noting that the alleged conduct continues for as long as the comments remain on social media.

The Full Bench emphasised that a worker must establish that the comments were later accessed while ‘at work’, that is, while the worker is performing work (at any time or location) and is engaged in an activity which is authorised or permitted by the employer.

The Full Bench acknowledged that the meaning given to the expression ‘at work’ could lead to ‘arbitrary results’[4], for example, in cases where comments on social media constitute bullying behaviour, but cannot be accessed by the worker ‘at work’.

The boundaries of bullying ‘at work’ – watch this space!

The Full Bench was reluctant to conclusively define the range of circumstances in which a worker is considered to be ‘at work’, preferring that such matters develop on a case by case basis over time.

Recently, in an anti-bullying application before the FWC[5], issues arose as to whether alleged bullying behaviour that occurred while a worker was absent from work due to illness constituted bullying ‘at work’. Ultimately, the FWC was not required to determine this issue; however, the FWC noted that if it were necessary to do so, it would have found that many of the alleged bullying incidents, which occurred while the worker was absent from work due to illness, did not occur ‘at work’.

The boundaries of when a worker is ‘at work’ remain to be established by future cases that concern the practical issues foreshadowed by the FWC to arise when applying the definition of ‘at work’.

[1] section 789FF(1)(b)(i).
[2] Sharon Bowker, Annette Coombe, Stephen Zwarts v DP World Melbourne Limited, Maritime Union of Australia (Victorian Branch) and others [2014] FWCFB 9227 at 51.
[3] Ibid at 53.
[4] Ibid at 56.
[5] Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774