When is online bullying considered workplace bullying?

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Sharon Bowker; Annette Coombe; Stephen Zwarts V DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others [2014] FWCFB 9227

In the digital age it can be difficult to determine where an employer’s obligations regarding workplace bullying begins and ends. More and more workplaces are embracing external work arrangements and online communication platforms, opening up new arenas for bullying to occur – social media being among the more challenging to monitor.

In this case the Full Bench of Fair Work Commission was asked to determine whether particular incidents constituted workplace bullying as defined by section 789FD of the Fair Work Act 2009 (Cth) (“the Act”), which states:

  1. A worker is bullied at work if:
    1. while the worker is at work in a constitutionally-covered business:
      1. an individual; or
      2. a group of individuals;

      repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

    2. that behaviour creates a risk to health and safety.

Specifically, it was asked to define the terms “bullied at work” and “while the worker is at work” in the context of social media posts from work associates that contained prima facie bullying content.

The Definition of “At Work”

The Full Bench found that the term “at work” clearly involved instances where the worker was performing work regardless of their location. Thus, if a person is working from home or in an external meeting they would be considered at work. Similarly, if they were on an authorised lunch break this would be considered “at work” for the purposes of section 789FD of the Act even though they were not performing work. Therefore, they found a useful formulation of “at work” to be:

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.

Thus, when applied to social media bullying, “at work” would encompass instances where the worker is accessing social media while engaged in an activity that is authorised or permitted by the employer. An example might be checking Facebook while on a coffee break or reading a text message while writing a work email.

The Full Bench was quite clear that it was not important when the social media activity occurred, but when the worker making the claim accessed it. Thus, regardless of when a bullying social media post was posted by the perpetrator, if the worker making the claim accessed it while performing work or being engaged in an activity authorised by their employer it may be covered by section 789FD of the Act, and considered bullying at work.

Conversely, given this interpretation, it means that where a worker views bullying social media posts when they are not “at work” they may not be entitled to a remedy under section 789FD.

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Written by Michaela Vaughn (Lawyer) and Natasha Duff (Senior Associate)