Fair Work Commission clarifies definition of workplace bullying

A Full Bench of the Fair Work Commission has handed down a decision clarifying some aspects of the definition of workplace bullying.

Changes to the Fair Work legislation have made it possible for employees to apply to the Fair Work Commission for an order to stop bullying, where this occurs 'while the worker is at work'.

In a matter involving three employees who claimed they had been bullied at work, the Full Bench considered the meaning of 'at work' under s.789FF(1)(b)(i) of the Fair Work Act 2009. The case involved allegations that officials and/or delegates of the Maritime Union of Australia had engaged in bullying conduct towards the employees.

The employees argued that bullying occurs 'at work' if the conduct has a substantial connection to work. They said that the definition should be expansive enough to include the following behaviour:

  • conduct involving making social media postings that are visible to work colleagues;
  • conduct by work colleagues outside the workplace which is inconsistent with training undertaken by the employer and the exercise of authority assumed by the employer over those out-of-hours activities;
  • conduct by unionofficials or delegates in or outside the workplace under which they have assumed or sought to assume the function of controlling or dealing with workplace grievances; or
  • conduct by union officials or delegates in or outside the workplace by which they have expressed disapproval or censure, or sought to have others express disapproval or censure against the employees concerned.

The employer, the MUA and employer associations argued that conduct occurs while the worker is ‘at work’ if it occurs at 'any time that the worker is performing labour'. They submitted that conduct does not fall within this definition if:

  • the conduct is engaged in by person(s) who are not work colleagues and occurs outside the workplace;
  • the conduct occurs outside the workplace at a time when the employee is not undertaking work activities; and/or
  • the conduct occurs outside the workplace and is not related to the work being undertaken by the worker (for example, where the conduct occurs in the context of the employee's union membership).

The Full Bench rejected the employee's submission that conduct occurs ‘at work’ if it has ‘a substantial connection to work’, concluding that the legislation was intended to have a narrower application to that. In the decision, the Full Bench stated:

It seems to us that the concept of being ‘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... (such as being on a meal break or accessing social media while performing work).

The Full Bench acknowledged the difficulties associated with the use of social media, noting in the decision:

[We reject the submission] that the worker would have to be ‘at work’ at the time the facebook posts were made. The relevant behaviour is not limited to the point in time when the comments are first posted on facebook. The behaviour continues for as long as the comments remain on facebook. It follows that the worker need not be ‘at work’ at the time the comments are posted, it would suffice if they accessed the comments later while ‘at work’ ...


We acknowledge that the meaning we have ascribed ... may give rise to some arbitrary results. A worker may only access comments on social media which constitute unreasonable behaviour ... at a time when they are not ‘at work’ and the behaviour will not fall within the scope of [the legislation]. But it seems to us that such a consequence necessarily follows from the fact that the legislature has adopted a definition which is intended to confine the operation of the substantive provisions.

An additional consideration arises in the context of unreasonable behaviour through the medium of social media. What is the position in respect of facebook posts which have no relevant workplace connection, eg posts from a former partner who has no workplace connection with ‘the worker’. If such posts constitute unreasonable behaviour and they are read by the worker while he or she is ‘at work’, do they fall within the scope of the definition in [the legislation] (assuming that they also create a risk to health and safety...)? We doubt that such an outcome was intended by the legislature having regard to the legislative context and the language of s.789FD [of the Fair Work Act].

The Full Bench foreshadowed further clarification of the definition in future cases , stating:

We do not think it appropriate to canvass the practical application of the definition of bullied at work beyond what we have already said. The application of the meaning of ‘at work’ in a particular case will depend on all the circumstances and it is appropriate that the jurisprudence develop on a case by case basis.

 

Fair Work Commission: [2014] FWCFB 9227 Bowker; Coombe; Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others