Since January 2014, workers have been able to pursue complaints of bullying to the Fair Work Commission, following amendments to the Fair Work Act 2009 (Cth) (Act).
Under the Act, a worker is bullied at work if, while at work in a constitutionally covered business, a person or group of people repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.
What does “at work” mean?
While this new bullying jurisdiction is in its infancy, we are waiting to see how the tribunal will interpret this definition. The challenge before a five-member bench of the Fair Work Commission last week was to define what “at work” means in the context of this legislation. Obviously, the scope of this term has significant implications for employers; it establishes when a complaint of bullying can be pursued as a claim to the Fair Work Commission.
In some cases, this definition of “at work” has the potential to allow room for uncertainty and wide interpretation. It is a critical point because if the alleged bullying behaviour was not “at work”, then the claim will be struck out by the Commission.
If a worker alleges that he is being bullied by his manager who repeatedly humiliates him in front of his co-workers in the office, then this would almost certainly be “at work”. The lines become blurred when we consider a scenario that involves, for example, the alleged bullying taking place via phone calls from the manager to the worker after hours, or by way of comments on social media.
What was the outcome?
The bench was very clear that alleged bullies need not be “at work” at the time of their conduct. All five members ruled that the words encompass “both the performance of work and when the worker is engaged in some other activity which is authorised or permitted by their employer”.
This means that, in the case of the above examples, the worker will most likely be considered to have been at work when the alleged bullying took place, though consideration will always be given to context.
Another critical finding for employers was that workers do not need to be “at work” when social media comments are posted in order for those comments to be bullying. The basis for this finding was that it is irrelevant when bullying comments are first posted, because the behaviour continues for as long as those comments remain online.
To put this into context, the individual accused of bullying may post comments on a worker’s Facebook page from his own home, outside of working hours, but then the worker may read those comments from his work laptop during normal working hours. The lines become too easily blurred and any arguments that there is an insufficient link between social media and the workplace have been rejected.
The outcome is that if the bullying is connected to the performance of work and the worker is engaged in an activity permitted by the employer, it is most likely to be considered to have taken place “at work”.
What does this mean for employers?
In view of these findings, employers should have comprehensive policies and training in place which deal with bullying as a separate topic. They need to be clear on what behaviour constitutes bullying and the fact that bullying does not need to take place within the “traditional” confines of the workplace or during normal working hours for it to be considered workplace bullying, and to enable the affected worker to bring their complaint before the Fair Work Commission.