The boundaries of ‘the workplace’ have blurred in recent years. Employers have found themselves legally liable for unlawful employee behaviour taking place outside the office and outside of working hours. With laptop or tablet in hand, employees can move their ‘workplace’ almost anywhere and their employers’ responsibilities have moved with them. We have seen this in a range of contexts – from sexual harassment and discrimination to workers’ compensation and work health and safety.
Bucking the trend, in the recent case of Bowker & Ors v DP World Melbourne Limited & Ors  FWCFB 9227, a Full Bench of the Fair Work Commission has more narrowly defined when an employee is ‘at work’ for the purposes of the anti-bullying regime in the Fair Work Act 2009.
Three employees of global marine terminal operator, DP World, applied to the Commission for ‘stop bullying’ orders against DP World and the Maritime Union of Australia (the respondents). The applicants allege that they were the subject of unreasonable behaviour by other DP World employees (who were also members of the MUA) and MUA officials.
Under the statutory anti-bullying regime, the Commission can only make orders to stop bullying if (among other things) it is satisfied that the worker has been bullied ‘at work’.
The respondents applied to strike out a number of the grounds of alleged bullying on the basis that they did not occur ‘at work’. These grounds included:
- that an MUA official had failed to advise union members on site that allegations made against one of the applicants were wrong – and took no action to prevent two of the applicants being called a ‘lagger’ (a term referring to someone as having informed on or betrayed a colleague – which is generally understood as derogatory and highly offensive in an industrial context);
- that offensive and insulting Facebook posts had been made by DP World employees who were MUA members, and by MUA officials, about two of the applicants;
- that an MUA official failed to provide representation and advice to two of the applicants (who were MUA members);
- that employees of DP World and MUA members made various threats to the applicants and encouraged other members not to associate with them.
The Commission member hearing the matter referred the strike-out application to a Full Bench of the Commission for determination.
Weighing up the arguments
Under the Fair Work Act 2009, a worker is bullied at work if, while the worker is at work, an individual or group repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.
The issue for the Full Bench was whether the relevant grounds of bullying occurred ‘at work’ within the meaning of the anti-bullying provisions.
The applicants argued that:
- conduct occurs ‘at work’ if the conduct has a substantial connection to work. There will be a substantial connection if the employer had the power to control the relevant conduct (for example, through disciplinary measures);
- being ‘at work’ was broader than being at a physical ‘workplace’. To interpret ‘at work’ more narrowly under the anti-bullying regime would create a disparity between its scope and that of other legislative protections (like discrimination and work health and safety).
On the other hand, the respondents and intervenors (the Ai Group, ACCI and ACTU) argued that:
- ‘bullying at work’ required the worker to be performing labour when the bullying behaviour occurred (regardless of the time of day or location);
- the approach taken under other statutory regimes, such as discrimination, could be distinguished on the basis that the anti-bullying provisions specifically use the words ‘at work’ and ‘while the worker is at work’, whereas the discrimination regime rests on the geographical nexus of conduct at a ‘workplace’.
On the respondents’ reasoning, conduct by persons who were not work colleagues and which occurred outside the workplace (as for some of the bullying allegations made against MUA officials), or that occurred outside the workplace when the victim was not performing work activities, could not be bullying ‘at work’.
The strike out application was ultimately dismissed. However, on the question of when bullying occurs ‘at work’, the Full Bench concluded that:
- The bullying has to occur while the worker is at work in a temporal sense. The words ‘at work’ are intended to confine the operation of the anti-bullying provisions. Bullying ‘at work’ is a narrower concept than conduct which has a ‘substantial connection to work’. Different words are used in other statutes (eg ‘in the person’s employment’ is a phrase used in discrimination legislation which is a broader concept than ‘at work’).
- The legal meaning of ‘while the worker is at work’ covers when a worker is performing work, regardless of location or time of day. Being ‘at work’ is not limited to the confines of a physical workplace.
- A worker may be ‘at work’ even when not actually performing work, such as during meal breaks. The concept of ‘at work’ may extend to when the worker is engaged in other activities authorised or permitted by the employer or principal (such as during a meal break or accessing social media while performing work).
- Whether conduct is ‘bullying at work’ will depend on the circumstances of the particular case and case law will, over time, further develop the meaning of the term. Accordingly, the Full Bench declined to further delineate the boundaries of what is meant by ‘at work’.
The Full Bench acknowledged that the limitations imposed by its interpretation of ‘at work’ could create particular challenges in relation to social media posts and potentially arbitrary outcomes. There is no requirement for the person responsible for ‘bullying’ posts to be at work when the posts are made, but the anti-bullying provisions require that the worker be ‘at work’ when on the receiving end of the bullying post. A Facebook post will continue for as long as the comments remain posted. The Full Bench reasoned that a worker would not need to be ‘at work’ at the time the comments were posted; it would suffice if the worker accessed the comments later while ‘at work’.
The Full Bench agreed with the respondents that it had power to strike out the allegations, but declined to do so noting that the Commission is not a court of pleading and is not bound by the same technicalities as courts. The Full Bench considered it too early to strike out the allegations before the claims were fully particularised and in circumstances where some of the allegations – even if not ‘bullying at work’ – could still provide relevant context and background.
Instead, the Full Bench referred the matter back to the member at first instance to hear evidence about the alleged conduct and determine the extent to which the proceedings should be confined.
Message for employers
Confining the operation of the anti-bullying provisions as the Commission has done will be welcome news for employers. Broad allegations of activity occurring outside the workplace have the potential to lead to expensive and time-consuming proceedings before the Commission.
Even though the Commission has no power to award monetary compensation in bullying cases, the more complex a claim, the more likely employers will be put to considerable expense in defending their position.
The case highlights that situations involving posts on social media may be particularly challenging and the approach adopted may lead to arbitrary results depending on where the bullied worker is when he or she accesses the offending posts.
We await future decisions of the Commission for further guidance.
This article was written by Kerryn Tredwell, Partner