The Full Bench of the Fair Work Commission has handed down an important interpretive decision concerning when a worker is bullied “at work”, for the purposes of the workplace bullying provisions under the Fair Work Act 2009 (the Act).
Current working practices now shadow the traditional workplace model, through increased mobility, work done outside of normal hours and the prevalence of social media. As a result, in recent years courts have been required to make findings about what performing work now looks like in the modern era.
The applicants in this case sought a stop bulling order, under the Act, against their employer; DP World Melbourne Limited (DP World), and the Maritime Union of Australia (MUA). They relied on a number of alleged grounds to establish their workplace bullying claim, some of which included:
- DP World employees posting insulting Facebook comments about the applicants;
- a DP World employee and member of the MUA calling one of the applicant’s a ‘scab’; and
- an MUA official calling an applicant and questioning why she had reported graffiti written about two of the applicants to management.
Under section 789FC of the Act, the FWC can only make a stop bulling order if satisfied that the worker has been unreasonably bullied at work by an individual (or group of individuals) and there is a risk the worker will continue to be bullied at work by the individual or group.
The Full Bench explored a range of different potential scenarios where this question may arise, but ultimately conceded the outcomes may appear arbitrary and each matter would turn on its own factual circumstances. A common feature, however, is the temporal link between the offending conduct and the worker performing his or her work. Of course, the worker need not be ‘at work’, in a physical sense, for the bullying provisions to apply. The worker must only be performing work or engaged in an activity which is authorised or permitted by the employer. Furthermore, the unreasonable behaviour towards the worker also does not need to be committed ‘at work’.
Some examples were offered by the Full Bench, in order to clarify their reasons. For instance, if a worker receives a phone call from a supervisor about work matters, while at home and outside of normal working hours, he or she may be considered to be ‘at work’ when engaged in the conversion. A Facebook comment, that constitutes bullying behaviour, need not be posted ‘at work’ however it would need to be accessed by the worker (who alleges bullying) either ‘at work’, while performing work, or otherwise engaging in an activity authorised by the employer. The Facebook example demonstrates the thin line that exists between regulating behaviour that occurs in and outside of the workplace.
It is important to observe that these examples were qualified by the Full Bench as not constituting any hard and fast rules and that each case will depend on the context, including the custom and practice of the workplace and the worker’s role. In any case, the decision provides employers with some guidance on how far the bullying provisions in the Act may extend to behaviour outside of the workplace.
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