A decision made by the Fair Work Commission has provided some guidance around what conduct will be treated as ‘at work’ in the new bullying jurisdiction.
The new bullying laws, in the Fair Work Act, mean that a worker can make an application and seek orders if they are being ‘bullied at work’.
The case involved a bullying application by three different workers against the Maritime Union of Australia (MUA) and DP World, a port operator. A full bench considered the definition of ‘at work’ in the context of allegations concerning inappropriate Facebook comments.
Acknowledging the social media context, the full bench held that the conduct is not limited to just the initial posting of the comments (which may occur outside of work) but includes the accessing of these comments or posts later on.
This means that even if the Facebook comments do not have a connection with work at the time they are initially posted it may later gain a connection with work, for example if they are accessed whilst at work.
The relevant question is whether at the time they were accessed the conduct occurred ‘at work’. For example, inappropriate Facebook comments may amount to bullying at work if the post is accessed, commented upon, shared etc in the workplace.
The two aspects to consider in relation to whether it was ‘at work’ are whether it occurred in relation to the performance of work (irrespective of location or hours) or if the activity was authorised or permitted by the employer.
It is important to remember that the workplace is not limited to the office between the hours and 9 and 5 and that it can include a range of other places and activities such as work functions, work trips or working from home.
In this case the conduct complained of was found to have occurred at work. Although the initial Facebook posting occurred outside of work, the comments were later accessed at work.
The decision may give rise to some interesting consequences at least in respect of the bullying jurisdiction. It may be difficult in some situations to show that comments or material, which would otherwise amount to bullying, occurred at work if the material was not accessed during the course of work or in a situation otherwise authorised or permitted by the employer.
Lessons for Employers
When considering if conduct may give rise to a bullying application and subsequent orders to stop the bullying, the key questions to ask include: what, when, where and who. You will need details of the conduct itself, when and where it occurred and who was involved.
Social media platforms invariably introduce another element because the comments are posted at one time but may be accessed, responded to, forwarded on or shared multiple times afterwards. Interestingly, if this only occurs outside of work (and assuming there is no authorisation or other work connection at that time) then there may not be grounds for a bullying application to the FWC.
Importantly, however, the conduct may still give rise to other potential claims highlighting the importance of up to date bullying, social media and code of conduct policies.