A Full Bench of the Fair Work Commission has recently provided guidance on when a worker will be considered to be bullied at work. Importantly, the Full Bench has adopted a narrow interpretation of when bullying will occur ‘at work’, despite acknowledging that the narrow interpretation may give rise to some arbitrary results.
Three workers applied to the Commission for stop bullying orders to be made against their employer and a union. Under the Commission’s anti‑bullying jurisdiction, the Commission’s jurisdiction to make such orders is only enlivened if, among other things, the Commission is satisfied that ‘the worker has been bullied at work’.
The employer and union sought to have certain allegations made by the workers struck out on the basis that the alleged bullying conduct did not occur ‘at work’, including alleged conduct that occurred in phone calls and Facebook posts. The preliminary strike out application was referred to a Full Bench for determination.
The Full Bench found that there must be a temporal connection between the bullying conduct and the worker being at work. Conduct that is substantially connected to work may not meet the test of occurring ‘at work’, as required by the anti‑bullying provisions of the Fair Work Act 2009 (Cth).
So when is a worker ‘at work’?
The Full Bench held that bullying conduct will be regarded as being ‘at work’ when:
- the alleged bullying conduct occurs while the worker is performing work (regardless of the worker’s location or the time of day); or
- 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.
Although the Full Bench did not canvas the practical application of this approach in detail, it acknowledged that the approach could give rise to arbitrary results, particularly if social media is involved. For example, a worker who accesses bullying comments on social media at a time when they are not at work may mean that the conduct does not fall within the Commission’s anti‑bullying jurisdiction, even though accessing those same comments whilst the worker is performing work may mean that the conduct falls within its jurisdiction.
Lessons for employers
The circumstances in which a worker will be regarded as being at work will depend on a number of factors, including the context, the nature of the worker’s contract and relevant custom and practice.
Employers should look at conduct on a case by case basis when determining whether there is a sufficient connection to work for it to fall within the Commission’s anti‑bullying jurisdiction. Employers should also be aware that conduct that falls outside the anti‑bullying jurisdiction may still give rise to other legal and commercial consequences for organisations.