Bullying "at work" can happen at home
Posted on February 12, 2015
We have previously written about the Fair Work Commission's (FWC) relatively new anti-bullying jurisdiction which commenced on 1 January 2014.
To refresh your memory, the Fair Work Act 2009 (FW Act) has been amended to allow a worker who reasonably believes that he or she has been bullied at work to apply to the FWC for an order to stop the bullying. If the FWC is satisfied that:
- the worker has been bullied at work; and
- that there is a risk that the worker will continue to be bullied,
it may make any order it considers appropriate to prevent further bullying.
The wording of the bullying provisions is ambiguous. For this reason, the decisions handed down by the FWC have been eagerly awaited to provide guidance as to how the anti-bullying measures will be applied.
One of the most recent decisions handed down by the Full Bench of the FWC, Bowker, Coombe & Zwarts v DP World Melbourne Limited T/A DP World, Maritime Union of Australia & Others [2014] FWCFB 9227, considered the requirement that the worker has been bullied “at work”. This arose in the context of the Respondents' contention that many of the bullying incidents complained of by the Applicants did not occur “at work”. That is, some of the alleged bullying conduct took place during a union meeting, via Facebook posts, on the telephone, and otherwise outside of the physical workplace.
The FWC considered the wording of the FW Act together with Parliament's intention behind the anti-bullying provisions and adopted a cautious, broad approach to the phrase “at work” on the basis that workplace bullying “manifests itself in a diversity of circumstances”. The Full Bench concluded that:
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).
Although the decision does not impart any clear rule as to what will amount to being “at work”, the FWC did consider what evidence will be drawn upon in determining whether the alleged bullying conduct occurred “at work”:
In most instances the practical application of the definition of 'bullied at work' in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker 'at work' when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker's contract.
In the present case, the FWC concluded that it would not strike-out the allegations of bullying which occurred off-site.
For employers, this decision provides further incentive to carefully consider all bullying complaints received; just because the bullying conduct complained of occurred away from the physical workplace, this does not necessarily mean that a connection to the workplace does not exist.
