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Always "at work"? Bullying and social media

Feature Articles

Cite as: March 2014 88 (03) LIJ, p.50

The new anti-bullying provisions of the Fair Work Act provide a remedy for bullied workers – and a challenge of interpretation for the Fair Work Commission.

By Josh Bornstein and Emeline Gaske

The anti-bullying measures of the Fair Work Act 2009 (Cth) (the Act) commenced operation on 1 January 2014, creating a new jurisdiction in which workers who are being bullied at work may seek an order to stop the bullying conduct. A worker who is being bullied at work may now apply to the Fair Work Commission (FWC) for an order to stop the bullying (s789FC). Given the prevalence of social media use among the community, it is likely that in any given workplace many or most of the employees use at least one social media network. One need not exercise too much imagination in order to picture how workers may use social media networks such as Facebook to belittle, intimidate and otherwise act unreasonably towards their co-workers by posting derogatory or aggressive updates on their own page, visible to their “friends” or members of the general public, or by sending abusive, obscene or threatening messages directly to their co-worker. The messages may be sent or the posts made outside working hours or away from the workplace. Such conduct, if repetitive or part of a course of other unreasonable behaviour, may constitute bullying. However, as the anti-bullying provisions provide that the bullying complained of must be experienced “at work”, there is an open question as to how the FWC will deal with bullying by co-workers using social media networks, especially when it occurs outside working hours.

The anti-bullying provisions

The anti-bullying provisions were inserted into the Act pursuant to the Fair Work Amendment Act 2013 in response to the House of Representatives Standing Committee on Education and Employment’s report Workplace Bullying: We just want it to stop. By majority, the committee found that existing anti-bullying measures were inadequate to deal with the scourge of workplace bullying. The anti-bullying provisions are directed at providing an early-intervention mechanism through which workers can seek timely recourse to stop or reduce workplace bullying.

Under the provisions, a worker who reasonably believes that he or she has been bullied at work may make an application to the FWC (s789FC). If the FWC is satisfied that the worker has been bullied at work, and there is a risk that the worker will continue to be bullied, then it may make an order to prevent the worker from being bullied (s789FC). The FWC has a broad discretion as to the orders that it may make to prevent workplace bullying. However, it cannot make orders awarding any compensation (s789FF).

Before exercising the power to make orders to prevent bullying, the FWC must be satisfied of particular jurisdictional facts including that a worker has been bullied at work. Section 789FD of the Act provides that:

(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.

Furthermore, before making any orders in respect of the bullying, the FWC must also be satisfied that there is a risk that the worker will continue to be bullied at work (s789FF(1)(b)(ii)).

Is the bullying experienced “at work”?

In order to make an order, the FWC must be satisfied that the victim was bullied “at work”. What does “at work” mean for the modern workplace? The advent of technology such as smartphones and the increasing use of flexible workplace practices such as working from home have diminished the line between a worker’s private life and work life.

The plain meaning of the words “at work” suggests that there must be a temporal and/or geographic connection between the bullying and the workplace, namely that the victim is bullied at the place of work or while performing work. At the time of writing there have not been any cases that have caused the FWC to consider this point.

The requirement that the victim be bullied “at work” before the FWC may make an order appear to be a more narrow formulation than that set out in other parts of the Act. For example, in determining whether the dismissal of an employee was an unfair dismissal pursuant to Part 3-2 of the Act, the FWC must consider whether “there was a valid reason for the dismissal related to the person’s capacity or conduct”. Section 82 of the Accident Compensation Act 1985 (Vic) provides that Victorian workers are entitled to compensation where they sustain an injury “arising out of or in the course of employment”. There is no express reference to a temporal or geographical connection to the workplace, and conduct is not limited to that occurring “at work” in either of these provisions.

The phrase “at work” appears in s19 of the Work Health and Safety Act 2011 (Cth) (WHS Act), which requires a person conducting a business or undertaking to ensure, as far as reasonably practicable, the health and safety of relevant workers “while the workers are at work in the business or undertaking”. Paragraph 22 of the explanatory memorandum to the WHS Act states that s19 of the WHS Actis tied to the work activities wherever they occur and is not limited to the confines of a physical workplace” (emphasis added).

Further, the New South Wales Industrial Relations Commission (NSW IRC) has considered the phrase “at work” in the context of the Occupational Health and Safety Act 1983 (NSW), which has since been repealed. In that context the vice-president of the NSW IRC, Walton J, said:

“I consider the phrase ‘at work’ in s15(1) of the Act has temporal connotations. It applies equally to all kinds of work. On a building site it would include entering, moving about and leaving the site . . .”1

In a later case concerning the same provision, Walton J relevantly said, “there is a distinction between being ‘at work’ in s15 and being ‘at the employer’s place of work’”.2

Accordingly, we contend that the FWC will likely consider the following matters in respect of the requirement that the victim be bullied “at work”:

  • it is a narrow test, and is primarily concerned with a connection between the bullying complained of and the performance of work;
  • it plainly includes circumstances in which a worker experiences bullying at the hands of a co-worker during working hours and at their place of work;
  • it is not limited to circumstances in which the worker is performing work at the employer’s place of business; and
  • it may include circumstances in which a worker is performing work at another location, or when the worker is not performing work but arriving at, leaving or moving about the workplace.

Is bullying on social media “at work”?

Importantly, the focus of the anti-bullying provisions appears to be on where and when the bullying is experienced by the victim, rather than where and when the bullying is perpetrated. It also appears that there is no requirement that the perpetrator of the bullying be at work at the time of engaging in the bullying conduct. This is particularly relevant to bullying that is perpetrated via the use of social media, especially where a business provides its workers with access to social media on work computers. In those circumstances, the perpetrator may engage in bullying via the use of social media while they are away from the workplace, or even on leave, but the bullying is experienced by the victim during the working day, if they check their social-media networks while at work, during working hours. In those circumstances, the FWC would likely find that the alleged bullying took place “at work”.

But what about where a worker is bullied via the use of social media while performing work at their home, outside of working hours? Or where a worker is bullied by a co-worker via social media on the weekend but views the offending posts or messages on a work-issued smartphone or laptop? How will the FWC determine whether the victims in these circumstances have been bullied “at work”?

Although a social media post may be made, or viewed, outside of working hours, it does not stop being visible once the workers return to the workplace, and it remains accessible until such time as it is deleted.3

Applying the general principles as to when the FWC will find that a worker has been bullied “at work” in determining whether bullying via the use of social media has occurred “at work”, the FWC may consider factors including the following:

  • Whether the worker is habitually required to perform work outside of working hours or from outside the workplace;
  • Whether the employer promotes or encourages the use of social media by its workers (including outside of working hours);
  • Whether the offending messages or posts remained visible for an extended period of time, including the victim’s ordinary working hours;
  • Whether the employer provides access to social media websites in the workplace, enabling the victim to view the messages or posts during his or her working hours, and whether the messages or posts were in fact viewed in the workplace or during working hours; and
  • Whether the messages or posts are part of a course of bullying conduct that includes bullying during working hours or at the workplace.

Interestingly, in determining unfair dismissal claims, the FWC has adopted a broad approach as to the relevance of out of work conduct to the employment relationship. It has been held that an appropriate test as to when out-of-work conduct may justify dismissal of an employee is “whether or not the conduct has a relevant connection to the employment”.4 This test focusses on the conduct of the employee and is directed at the impact of the conduct on the employer, the workplace and workplace relationships rather than whether the victim of the offending conduct was “at work”.

Accordingly, the FWC may find that bullying via the use of social media that occurs outside of working hours impacts the employer or workplace relationships such that it has a “relevant connection” to the employment and may be found to be a lawful basis on which to terminate the perpetrator’s employment. If the victim experienced the bullying away from the workplace, and at a time when work was not being performed (such as outside of working hours at night, on the weekend or while on a period of leave), it is possible that the very same conduct may not be able to be the subject of anti-bullying orders, as the FWC may find that the victim was not bullied “at work”.

Potential outcomes

Until a body of case law is developed, there will be considerable uncertainty as to when the FWC will determine that bullying perpetrated via the use of social media has occurred “at work”. There may be circumstances in which the FWC will find that a worker was bullied “at work” even where the bullying conduct in question includes, or solely constitutes, social media posts and messages that are made outside of working hours. However, it appears that the more closely connected the victim’s experience of bullying is to the performance of work, the more likely it is that the FWC will find that the victim was bullied at work.

Each case will turn on its particular facts, however it is more likely that social media posts and messages will be found to be bullying “at work” where they are viewed or experienced by the victim in the workplace or during work hours, or reasonably create real fear or anxiety in the victim while they are at the workplace, notwithstanding that the perpetrator may not be “at work” at the same time. Further, the FWC may be more likely to find that a worker who experiences bullying via social media while performing work at home outside of working hours has been bullied “at work” in circumstances where that worker is habitually required to perform work from home outside of working hours. The FWC may be less likely to find that a worker was bullied “at work” where the worker experiences bullying via social media while they are not performing work, such as on the weekend or while on a period of leave.

Interestingly, the fact that the perpetrator of the bullying does not need to be at work in order for the FWC to determine that the victim was bullied “at work” may also mean that the perpetrator may be the respondent to a bullying proceeding in the FWC, or the subject of anti-bullying orders made by the FWC, notwithstanding that their conduct occurred while they were away from the workplace – for example, while they were on leave.

Conclusion

The anti-bullying provisions of the Act provide new challenges to practitioners. Unlike many other provisions of the Act, the laws are not limited to the employment relationship. Instead, they apply to an expansive definition of “worker” in a relevant business or undertaking.

In addition, until the new provisions are tested and a body of case law develops, there will be uncertainty about the scope of the legislative requirement that the bullying be engaged in “at work”.



JOSH BORNSTEIN is a principal and manages the national employment and industrial law practice at Maurice Blackburn Lawyers. @JoshBBornstein. EMELINE GASKE is a lawyer in the employment and industrial law practice at Maurice Blackburn Lawyers. @EmelineGaske

1. Workcover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325.

2. Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 at [301].

3. See, for example, the analysis of Commissioner Bissett in Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA 7358 at [52] and the analysis of the full bench in Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097 at [26].

4. Hussein v Westpac (1995) 59 IR 103 at 107. See also Rose v Telstra [1998] AIRC, Print Q9292, and McManus v Scott-Charlton (1996) 140 ALR 625.

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