Workplace Bullying and the Meaning of "At Work"

- Tuesday, January 27, 2015
debriefing
Workplace Bullying and the Meaning of "At Work"

The full bench of the Fair Work Commission (FWC) recently conducted a detailed analysis of the phrase ‘at work’ relevant to workplace bullying. The findings provide an insight into the possible meanings of this deceptively simple term. And with the advent of social media as a means of transmitting communications, defining what occurs 'at work' can certainly be a challenging task. 

Case in point 

This recent matter of Bowker & Ors v DP World [2014] FW CFB 9227 saw the full bench of the FWC closely examine what can be considered to have occurred ‘at work’. In this case, three workers were seeking anti-bullying orders against their employer.  The respondents concurrently sought to strike out a number of alleged bullying claims, arguing that they had not occurred ‘at work’. 

Substantial connection? 

In opposing any strike-out, the workers argued that in accordance with s789FD of the Fair Work Act, the bullying behaviour could be found to have occurred at work if a ‘substantial connection to work’ was established. However, President Iain Ross and his colleagues on the FWC rejected this position, stating that there was ‘no persuasive argument’ to expand the reach of s789FD in this way. The bench made it clear that a limiting rather than broad interpretation of the section was in order. 

Performance and authorised activities 

To provide clarity around the concept of bullying ‘at work’ within 789FD of the Act, the FWC stated that the words encompassed "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 way, the actual work functions and/or authorised activities were considered a key starting point for the application of section 789FD. 

Time and place of cyber bullying

Part of the alleged behaviour involved offensive Facebook comments that had been made about the workers. It was argued by the respondent that these had not been posted at work – and thus fell outside of the bullying provisions of the Act. Rejecting this approach, the full bench stated that it is not a question of when the offending comments are posted on social media. For the purpose of proving workplace bullying, the mischief will be seen to occur at any time that the worker accesses the comments while the worker is ‘at work’.   

Lessons learned
This case reflects the challenges inherent in applying the idea of ‘at work’ to modern cases of workplace bullying. The focus of the FWC full bench on the time and place where the bullying was experienced – rather than the time and place of posting – sheds useful light upon bullying ‘at work’ when social media is involved. And in rejecting ‘substantial connection’ as a means of determining if the alleged mischief occurred at work, the bench made clear that any interpretation of s789FD should be limited to the clear purpose of the provision within the Act.
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