Sharon Bowker & Others v DP World Melbourne Limited and Others  FWCFB 9227
A Full Bench of the Fair Work Commission (FWC) has clarified a central concept in the anti-bullying jurisdiction established under the Fair Work Act 2009 (FW Act), that is, what it means for a worker to be "at work" when the bullying conduct occurs.
For the purposes of the anti-bullying jurisdiction, a worker being "at work" will cover both the performance of work at any time or place by the worker and the worker being engaged in some other authorised activity.
What does this mean in practice?
- A worker will be "at work" when they are in the office, factory, warehouse or construction site, during a lunchbreak and when they are on the road travelling between work sites.
- They will not be "at work" when they are at home and not performing work or when they are socialising after work with work mates at pub or restaurant.
- A worker will be bullied "at work" if they read a Tweet or Facebook post while they are performing work. However, based on the FWC's definition, they are likely to be found to be not "at work" if they read the post when they are at home in their private time.
This clarification is important because it makes it clear that to enliven the FWC's anti-bullying jurisdiction, there must be an actual connection between the bullying conduct and when the worker is "at work".
As the proliferation of flexible work arrangements, social media and technological advancements blur the boundary between work and home life, what it means to be bullied "at work" will continue to evolve as it is tested in anti-bullying matters that come before the FWC.
Scope of meaning of "at work"
A worker who reasonably believes that they have been bullied "at work" may apply to the FWC for an order that the bullying stop. 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.
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". This, the FWC concluded, is consistent with the purpose of the anti-bullying provisions in the FW Act and the mischief they are intended to address.
In DP World, the FWC 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).
Under this definition, 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.
Because the focus is on the worker being "at work", the individual(s) who repeatedly engage in the unreasonable behaviour towards the worker do not need to be "at work" at the time they engage in that behaviour.
Practical application of the definition of "at work"
In most cases, the question of whether the alleged bullying conduct has occurred "at work" will be uncontroversial (e.g. where the bullying conduct has occurred during work hours when the worker is at the office or another worksite).
However, the FWC highlighted a number of scenarios 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.
Guidance from the unfair dismissal jurisdiction
A look at what the FWC considers to be "out-of-work" conduct in the context of its unfair dismissal jurisdiction (in particular, whether there was a sufficient connection between an employee's out-of-work conduct and the workplace) gives additional guidance as to how the definition of "at work" may be applied in the anti-bullying jurisdiction.
In one matter previously before the FWC, an employee was dismissed 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 employee 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.
Applying the FWC's definition, the payroll employee 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 employee, then it would form part of the bullying conduct towards the employee while she was "at work".
Conduct after a work function in privately arranged accommodation
In another matter, a number of employees were staying in privately arranged accommodation after a work function. One of the employees staying at the accommodation complained about the behaviour of some of her colleagues who also stayed there. The FWC found that there was not a sufficient connection between the conduct and the workplace. The employer could therefore not take disciplinary action against the employees for their conduct. If a similar scenario was considered in the anti-bullying jurisdiction, the FWC would be likely to find that the conduct complained of did not occur "at work".
Conduct when on a work-related trip
An employee was dismissed for sexually harassing a colleague while they were off-duty and having a social drink at a pub during a work-related trip that was arranged by their employer. At first instance, the dismissal was found to be unfair for reasons including that the sexual harassment occurred during private and not work time. On appeal, it was noted that whether the employee was or was not on duty when the conduct occurred was not "clear cut" and that "reasonable minds may differ" on the issue. The initial decision was upheld on appeal on the basis that the finding that the conduct occurred outside of work was open on the facts. This example would challenge the FWC, but a finding that the employee was not "at work" in these circumstances would be open.
What does this mean?
While the FWC's decision in DP World has helped to clarify when an employee is "at work" for the purposes of the anti-bullying provisions, there will continue to be differing opinions on this issue. Factual scenarios that fall in the margins of the concept of an employee being "at work" will, as acknowledged by the FWC, "depend on the context, including custom and practice, and the nature of the worker's contract". There will always be scenarios that cross the boundary between work and private life that will give rise to arbitrary results. This will be a consequence of the intention of the FW Act to confine and limit the operation of the anti-bullying provisions to when the worker is "at work".
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.