Workers interact with each other at and outside of the workplace through various mediums.  When these interactions go wrong, employers are often reluctantly brought into the conflict.  The boundaries of legal liability are tested. 

Why should an employer have to deal with an inappropriate Facebook post made by one worker to another on the weekend?   In Bowker & Ors v DP World Melbourne Limited & Ors [2014] FWCFB 9227 (19 December 2014) the Full Bench of the Fair Work Commission provided guidance as to when behaviour will be considered to be 'at work' and within the jurisdiction of the new bullying regime in the Fair Work Act 2009.

The facts

Three employees of DP World lodged bullying applications in the FWC alleging unreasonable behaviour towards them by employees of DP World and by members and officials of the Maritime Union of Australia.  The alleged unreasonable behaviour included, amongst other things, various Facebook posts making insulting allegations about them and calling the employees "laggers" and "scabs".

DP World and the MUA sought, as a preliminary matter, to strike out some of these allegations on the basis that the alleged behaviour was not 'at work'.

The legislation

A worker can lodge a bullying application with the FWC if the worker believes he or she 'has been bullied at work': s789FC(1) of the FW Act.  The FWC is empowered to make orders to stop bullying if it is satisfied that a worker 'has been bullied at work': s789FF(1)(b)(i).

Section 789FD(1) of the FW Act provides that a worker is bullied at work if 'while the worker is at work' an individual or group repeatedly behaves unreasonably towards the worker.

As is apparent, central to the jurisdiction of the FWC is the concept of the worker being bullied 'at work'.

"At work"

Obviously, the bullying must occur 'while the worker is at work', that is, during the time the worker is at work.  However, there is no requirement the individual or group engaging in the bullying behaviour must be at work at the time of their conduct.

When is a worker 'at work'?  Being 'at work' is not limited to the confines of the physical workplace.  A worker will be 'at work' at any time they perform work regardless of location or time of day.  A worker may also be 'at work' at other times, like when on an authorised meal break.  The Full Bench concluded:

[51] 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, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).

In this modern day, some workers are 'at work' at more times than just during business hours.

The impact of social media

In the text, Social Media and the Law, I wrote 'the nature of social media means that communications out of work may nevertheless find themselves at work impacting on the employee' and I foreshadowed that 'an employee could argue that the out of work comments have come into the workplace'. 

The Full Bench observed that the use of social media to engage in bullying behaviour creates challenges.  Conceptually, unreasonable behaviour on social media could constitute bullying.  The Full Bench continued at [54]:

... 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?

[55] During the course of ... argument ... the MUA submitted that the worker would have to be at work’ at the time the facebook posts were made.  We reject this submission.  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...

The ease with which access is made to social media on devices at work means aggrieved employees will be readily able to bring out of work conduct into the relevant work environment.

The outcome - more to come

DP World and the MUA failed in their application to strike out the claims.  The strike out application was premature for two reasons:

  • the FWC is not bound by formality and it has a mandate to get to the heart of matters as "directly and effectively as possible";  and
  • some actions not at work may nevertheless provide relevant context and background to alleged behaviour at work.

It seems that, unless the matter resolves, all the dirty laundry in this case will be aired in time.

Conclusion

A union, the MUA, arguing for a narrow application of the new bullying regime is ironic but then losing that argument is not a good outcome for employers. 

The requirement that a worker be bullied 'at work' is a limitation on the jurisdiction of the FWC.  That limitation is easily transcended by the modern day nature of work, the nature of social media and the need for the FWC to get to the heart of matters.  Out of work conduct affecting co-workers remains a legitimate concern for employers as affected employees will often experience the effects of that conduct at work.