Bullying: When, Where, How

It has been just over a year since the introduction of the Fair Work Commission’s bullying jurisdiction and there are still very few cases to shed light on its operation in practice. The Fair Work Act 2009 (the Act) defines bullying as repeated, unreasonable behaviour toward a worker by an individual or group of individuals. On application by an aggrieved worker, the Commission is empowered to intervene at workplaces and issue ‘anti-bullying orders’, but only if “a worker…has been bullied at work”.

While events occurring in a workplace context have generally been defined broadly in other employment related jurisdictions (such as sexual harassment/discrimination in the workplace), the Full Bench of the FWC (FBFWC) has adopted a slightly narrower view than other jurisdictions in interpreting what is considered “at work” for the purposes of its own anti-bullying role.

Case study: Bowker & Ors v DP World Melbourne Limited, Maritime Union of Australia (Victorian branch) and Ors [2014] FWCFB 9227

In this case, three workers sought anti-bullying orders against their employer (DP World) and the Maritime Union of Australia (MUA). In support of their application, the workers outlined various alleged bullying occurrences, which included:

• That the MUA took no action to prevent the workers being ostracised in the workplace and encouraged others not to associate with them;
• That DP World employees who were MUA members and MUA officials made various facebook posts making “making various unreasonable and insulting allegations”;
• That an employee of DP World and a delegate of the MUA excluded two of the workers from union activities and events; and
• That threats were made to the workers by DP World employees and members of the MUA

The workers argued that these events had a “substantial connection to work”.

In defining ‘at work’, the FBFWC held that the words “while the worker is at work” in the Act was intended to create a connection between the bullying conduct and the workplace. Therefore, it held that the conduct must have occurred whilst the worker was performing the work.

While acknowledging that each matter would depend entirely on the circumstances and there was no ‘one size fits all’ blanket rule, the FBFWC considered that the expression encompassed the following:

• Conduct which occurs when the worker is ‘performing work’ or is engaging in an 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)”;
• That ‘work’ “is not limited to the confines of a physical workplace” and that a “worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or time of day”; and
• That it is the aggrieved worker who must be “at work”, not the offenders. The worker can seek the protection of the jurisdiction therefore even if the offenders are not at work at the time

With regards to social media such as facebook, it was held that the “the [unreasonable] behaviour continues for as long as the comments remain on facebook” and the jurisdiction would be enlivened if the worker accessed the comments “later while ‘at work'”.

Ultimately, the FBFWC determined to have the matter re-heard at a later stage to allow further evidence to be adduced before determining which conduct (if any) was considered to be ‘at work’.

Lesson for employers

The wording of the Act in relation to bullying differs slightly from the wording of its OH&S counterparts and this difference underpins the Commission’s narrower interpretation of ‘at work’.

The FWC can only interfere in a workplace if the worker is being bullied:

1. Whilst at work; and
2. Whilst performing work

This differs from the interpretation in, for instance, the recent sexual harassment case of Vergara v Ewin where it was held that conduct may contravene the Sex Discrimination Act, regardless of whether the employees are performing work. In that case, it was held that the pub across the street was a workplace as the employees went there to try and resolve discriminatory conduct which had commenced at the workplace.

Therefore, when faced with a bullying claim, employers may be able to strike out some alleged instances of bullying on the basis that they did not occur whilst ‘performing’ work.

However, whilst the bullying jurisdiction continues to obtain more publicity and airtime amongst employees, employers should ensure that they have implemented bullying and social media policies and procedures from the outset to avoid being subject to an anti-bullying order from the FWC.

If you require new or updated policies, or require clarification as to how the bullying jurisdictions can affect your workplace, please contact HR Legal.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.