FWA: bullying “at work” & social media

Bowker v DP World Melbourne Limited [2014] FWCFB 9227

Since 1 January 2014 a worker as defined in the Work Health and Safety Act (Cth.) for which there are analogous provisions in Queensland (excepting most notably Qld Public Servants), may apply to the Fair Work Commission (FWC) under s.789FF(1)(b)(i)) of the Fair Work Act 2009 (Cth.) for a stop order of bull

“(1) If:

(a) a worker has made an application under section 789FC; and (b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and (ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body – those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes – that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes – those outcomes; and

(d) any matters that the FWC considers relevant.” (emphasis added)”

Section 789FD:

“(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or (ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and (b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner. (3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or (ii) the Commonwealth; or (iii) a Commonwealth authority; or (iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally-covered business.” (emphasis added).

Full Bench of the FWC

The Full Bench of the FWC considered “bullied at work” and in particular, by reference to social media and while the worker is at work. The applicants contended that the reference to “at work” was qualified by ‘a substantial connection to work’, which was rejected:

[45] As part of a definition the words ‘at work’ should be construed conformably with the evident policy or purpose of the substantive enactment and the mischief that it was designed to overcome. As we have seen the mischief to which Part 6-4B is directed is workplace bullying. Seen in that context the words ‘at work’ in the expression ‘while the worker is at work’ (in s.789FD(1)(a)) are words of limitation which are intended to confine the operation of the substantive provisions.

[46] We reject the proposition, advanced on behalf of the Applicants, that conduct occurs ‘at work’ if it has ‘a substantial connection to work’. We note that counsel for the Applicants put the proposition even more broadly during the course of oral argument:

“Because the ‘at work’, as we contend, is the condition of being engaged by a constitutional corporation in some capacity, be it employment or other, in its business. That person is engaged in that business, even if they are asleep. This is a problem with, again, language. Somebody says to you, ‘Where do you work’, you say perhaps you work at the Fair Work Commission, that doesn’t stop when you’re asleep.” 18

[47] The difficulty with the submission put on behalf of the Applicants is there is no persuasive argument linking the definition proffered with the actual language of s.789FD(1)(a)). The submission advanced simply seeks to recast the statutory language into a more palatable form. We can see no warrant for such an approach. The adoption of the expression ‘while the worker is at work’ was clearly intended to confine the operation of the substantive provisions of Part 6-4B. The legislature could have chosen a more expansive definition, but chose not to do so (eg ‘in his or her employment’ and ‘in the person’s employment’ in FW Act s.342(1); or ‘employment’ in Age Discrimination Act 2004 (Cth) s.18, Disability Discrimination Act 1992 (Cth) s.15, Racial Discrimination Act 1975 (Cth) s.15 and Sex Discrimination Act 1984 (Cth) s.14; or ‘workplace’ in Sex Discrimination Act 1984 (Cth) s.28B).

[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

[51] 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).

[52] As noted in the Workplace Bullying Report, workplace bullying manifests itself in a diversity of circumstances and it is appropriate that we take a cautious approach to delineating the boundaries of what is meant by the words ‘at work’ in s.789FD(1)(a). It is preferable that the approach to this issue develop over time, on a case by case basis.

[53] 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.

[54] The use of social media to engage in bullying behaviour creates particular challenges. Conceptually there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying behaviour. But how does the definition of ‘bullied at work’ apply to such behaviour? For example, say the bullying behaviour consisted of a series of facebook posts. There is no requirement for the person who made the posts (the alleged bully) to be ‘at work’ at the time the posts were made, but what about the worker to whom they are directed?

[55] During the course of oral argument counsel for the MUA submitted that the worker would have to be ‘at work’ at the time the facebook posts were made. 19 We reject this submission. The relevant behaviour is not limited to the point in time when the comments are first posted on facebook. The behaviour continues for as long as the comments remain on facebook. It follows that the worker need not be ‘at work’ at the time the comments are posted, it would suffice if they accessed the comments later while ‘at work’, subject to the comment we make at paragraph 51 above.

[56] We acknowledge that the meaning we have ascribed to s.789FD may give rise to some arbitrary results. A worker may only access comments on social media which constitute unreasonable behaviour (with the meaning of s.789FD(1)(a)) at a time when they are not ‘at work’ and the behaviour will not fall within the scope of Part 6-4B. But it seems to us that such a consequence necessarily follows from the fact that the legislature has adopted a definition which is intended to confine the operation of the substantive provisions.

[57] An additional consideration arises in the context of unreasonable behaviour through the medium of social media. What is the position in respect of facebook posts which have no relevant workplace connection, eg posts from a former partner who has no workplace connection with ‘the worker’. If such posts constitute unreasonable behaviour and they are read by the worker while he or she is ‘at work’, do they fall within the scope of the definition in s.789FD (assuming that they also create a risk to health and safety: s.789FD(1)(b))? We doubt that such an outcome was intended by the legislature having regard to the legislative context and the language of s.789FD. As this issue does not directly arise in the present matter it is unnecessary for us to express a concluded view, but it is illustrative of the sort of practical issues which may arise in the application of the definition of ‘bullied at work’ in s.789FD.

[58] We do not think it appropriate to canvass the practical application of the definition of bullied at work beyond what we have already said. The application of the meaning of ‘at work’ in a particular case will depend on all the circumstances and it is appropriate that the jurisprudence develop on a case by case basis. We now turn to deal with the Respondents’ strike-out application.

David Cormack – Brisbane Barrister & Mediator

 

 

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