Australia: Bullying - at work - extends beyond the confines of the workplace

Bullying 'at work' is not simply confined to behaviour that occurs within the physical workplace, but encompasses both a worker's performance of work and participation in activities that have been authorised by an employer regardless of their location.

In a recent decision, a Full Bench of the Fair Work Commission (FWC) considered the meaning of the phrase 'while the worker is at work' in the context of the definition for 'bullying at work' in section 789FD of the Fair Work Act 2009 (Cth) (Act)¹. This case went on to also consider when bullying through social media will occur 'at work' and therefore be subject to the anti-bullying jurisdiction of the FWC.

Three employees of DP World Melbourne (Applicants) made an application to the FWC for an order to stop bullying against specific employees of DP World, members of the Maritime Union of Australia (MUA) and/or officials of the MUA. The Applicants made a number of allegations of unreasonable conduct including conduct involving several insulting social media posts on Facebook, exclusion from union activities and events and name-calling. DP World and the MUA together asked the FWC to strike out a number of the allegations on the basis that the conduct alleged did not occur while the employees were 'at work'.

The Applicants contended that conduct occurs 'at work' if it has a 'substantial connection to work'. The Full Bench rejected this submission, instead finding that the concept of being 'at work' is not limited to the physical workplace at which the worker performs work. The Full Bench confirmed that 'at work' incorporates both:

• the performance of work whenever and wherever that work is performed, and
• situations when a worker is engaged in an activity that is authorised or permitted by the employer (eg meal breaks).

Therefore, a worker on an authorised meal break at the workplace is considered to be 'at work'.

In its consideration of what constitutes conduct 'at work', the FWC noted the beneficial and remedial nature of the bullying provisions in the Act. The bullying provisions are considered to be analogous to the provisions enacted to improve the health and safety of workers in the workplace. Accordingly, the meaning of the words 'at work' should not be limited in a way that deprives employees of the intended protection.

The FWC confirmed that the bullying provisions of the Act focus on the worker being 'at work' (performing work or activities authorised by the employer) at the time the bullying occurs. The individual or individuals engaging in the unreasonable conduct do not need to be 'at work' at the time they engage in that behaviour. This distinction has specific difficulties for unreasonable conduct in the social media forum.

Impact of social media on the concept of 'at work'

It was noted in the decision that the definition of 'at work' proposed by the FWC in this case is unlikely to present difficulty in most situations. However, the Full Bench emphasised the complexity of the concept of 'at work' in the circumstances of social media:

"[54] The use of social media to engage in bullying behaviour creates particular challenges. Conceptually there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying behaviour. But how does the definition of 'bullied at work' apply to such behaviour? For example, say the bullying behaviour consisted of a series of Facebook posts. There is no requirement for the person who made the posts (the alleged bully) to be 'at work' at the time the posts were made, but what about the worker to whom they are directed?"

The Full Bench came to the conclusion that the actual time that the bullying behaviour is committed is of no consequence because all that is necessary for the behaviour to constitute bullying 'at work' is that the worker is exposed to the unreasonable behaviour while 'at work' (ie performing work or an activity authorised by the employer). In the context of comments made on social media, the behaviour will not be limited to the actual point in time when the comments were first posted, but will continue for as long as the comments remain on the social media forum. Therefore, in the case of a worker subjected to a series of unreasonable messages on Facebook, the messages will amount to bullying 'at work' if the worker accesses those comments while at work.

Lessons for employers

Ultimately, each application in the bullying jurisdiction of the Act will be considered on a case-by-case basis. However, this decision of the Full Bench confirms that bullying 'at work' is defined broadly to give effect to the remedial and beneficial nature of the provisions. The term 'at work' will focus on the worker and whether or not the worker was performing work or other activities authorised or directed by the employer.

Employers should ensure any allegations of bullying made by employees are taken seriously, and are acted upon in accordance with the relevant workplace policies. All steps taken by an employer in response to an allegation of bullying should be in accordance with internal policy and documented contemporaneously and filed on the employee's personnel file.

The use of social media during work is also an important issue to consider in today's society, particularly as the FWC has held that comments made outside of work hours may be considered to be unreasonable conduct if accessed by a worker while 'at work'. Employers should ensure that policies (and training if necessary) are put in place to deal with the use of social media in the workplace, and outline what is and is not reasonable and appropriate conduct on social media platforms.

Footnote

¹Sharon Bowker, Annette Coombe, Stephen Zwarts v DP World Melbourne Limited, Maritime Union of Australia (Victorian Branch) and other [2014] FWCFB 9227(19 December 2014).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.