The Fair Work Commission (FWC) has recently somewhat clarified what it means for a worker to be “at work” when the bullying conduct occurs.
Workers who believe they’re being bullied at work can apply to the Fair Work Commission for an order to stop the bullying. But the Fair Work Commission can only deal with applications for an order to stop bullying if a worker is bullied while they are at work. (read more on our Bullying in the Workplace page).
The FWC recently decided that being “at work” will cover both:
- the performance of work at any time or location not necessarily confined to a physical workplace, and
- when the worker is engaged in some other activity that is authorised or permitted by the employer, contractor or principal for whom they are performing the work (e.g. being on a meal break or accessing social media while performing work).
On 19 December 2014, a Full Bench of the FWC determined that “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). ( See the case of  FWCFB 9227,at )
FWC anti-bullying clarifies “at work” when bullying occurs
A worker being “at work” means:
- A worker will be “at work” when they (the worker) are in the office, factory, warehouse or construction site, but also during a lunchbreak and when they are on the road travelling between work sites.
- A worker will NOT be “at work” when the worker is at home and not performing work or when the worker is socialising after work with, for example, co-workers / work mates at pub (or elsewhere).
- A worker will NOT be “at work” if the bullying occurs when the worker is at home or otherwise outside of the workplace and they are not performing work at the time.
The FWC’s “at work” clarification is important as there must be an actual connection between the bullying conduct and when the worker is “at work”.
- A worker will be bullied “at work” if the worker, for example, reads a (bullying) Tweet or Facebook post while s/he is performing work.
- However, a worker will likely to be found to be not “at work” if s/he reads the Tweet or Facebook post when s/he is at home in their private time.
A worker who reasonably believes that they have been bullied “at work” may apply to the FWC for an order that the bullying stop. ( section 789FF of the Fair Work Act 2009.) The FWC may then make an order to stop the bullying if it is satisfied that the worker has been bullied “at work” and there is a risk that this bullying conduct will continue.
Under section 789FD of the Fair Work Act, a worker is considered to be “bullied at work” if an individual or group of individuals repeatedly behaves unreasonably towards the worker while at work and that behaviour creates a risk to health and safety. However, reasonable management action carried out in a reasonable manner is not considered bullying for the purpose of this section.
In order for a worker to be bullied “at work”, there must be an actual connection between the bullying conduct (that is, the repeated unreasonable behaviour) and when the worker is “at work”.
In most cases, the question of whether the alleged bullying conduct has occurred “at work” will be straight forward (e.g. where the bullying conduct has occurred during work hours when the worker is at the office or another worksite).
However, the FWC recently highlighted a number of scenarios/cases where the answer is not so clear-cut.
- One scenario is when a worker receives a phone call from their supervisor about work related matters while they are at home and outside their usual working hours.
- Another scenario is where a series of Facebook posts are made about a worker when the worker is not at work, and the worker later accesses the comments when they are in the workplace.
The FWC stated that in both scenarios the worker may be found to be “at work” when the bullying conduct occurred, but this will ultimately depend on the particular circumstances of each case.
Some recent case examples
Case 1: Facebook bullying
In one FWC case a worker was sacked for misconduct after he threatened a colleague who was responsible for payroll in a Facebook post. The threat was posted from home, outside of work hours when the worker was using his personal computer. A number of his colleagues were his Facebook friends. They knew who he was talking about in the post and promptly told the payroll employee about the threat at work the next day.
According to the FWC’s definition, the payroll worker would be found to be “at work” when she was made aware of and read the Facebook post. If the threat was part of a pattern of unreasonable behaviour towards the payroll worker, then it would form part of the bullying conduct towards the worker while she was “at work”.
Case 2: Bullying conduct after a work function
In another FWC case, a number of workers were staying in -privately organised- accommodation after a work function. One of the workers staying at the accommodation complained about the behaviour of some of her colleagues who also stayed there.
The FWC found that there was no sufficient connection between the conduct and the workplace.
Needless to say that the definition of being “at work” is not always straightforward as it can be blurred.The FWC will make decisions on a case by case basis.
A worker seeking a remedy from the Fair Work Commission with respect to workplace bullying can -at the same time – also seek other remedies for the (alleged) bullying. These avenues can include:
- Making a workers compensation claim
- Pursuing discrimination law proceedings before a discrimination tribunal
- Raising their dispute with the relevant Commonwealth, State or territory Work Health and Safety (WHS) regulator
- Commencing adverse action (general protections) proceedings before the Fair Work Commission, and therefore Federal Circuit Court and Federal Court
- Alleging breach of the employment contract
This basically means that a bullied worker can pursue multiple proceedings in relation to the same bullying allegation, simultaneously.