In brief - Employees make applications for an order to stop bullying
While the Full Bench of the Fair Work Commission recently expanded upon the definition of "at work" in a workplace bullying case involving three employees of DP World Melbourne Limited who made applications for an order to stop bullying, the matter will still need to be determined on evidence.
Fair Work Commission has power to issue orders under section 789FF
If a worker reasonably believes that he or she has been bullied at work, the worker can apply to the Fair Work Commission (FWC) for an order under section 789FF
of the Fair Work Act 2009
. The FWC will only have the power to make such orders if it is satisfied that the worker has been bullied "at work".
Under section 789FD
of the Fair Work Act
, a worker is considered to be "bullied at work" if an individual or group of individuals repeatedly behaves unreasonably towards the worker while at work and that behaviour creates a risk to health and safety. However, reasonable management action carried out in a reasonable manner is not considered bullying for the purpose of this section.
High Court considers "in the course of employment" in workplace injury cases
The term "at work" has previously been considered by various courts and tribunals in the context of workplace injuries which has made employers look past the actual workplace itself and beyond the ordinary hours of work.
For example, in Comcare v PVYW  HCA 41
, the High Court of Australia considered whether an injury sustained when an employee mixed business with pleasure arose "out of or in the course of employment". In that case, the employee was on a work trip and went out for dinner with a friend which subsequently led to a romantic encounter in the employee's motel room. While in the throes of passion, a light fitting above the bed was pulled down and fell, injuring the employee. The employee made a workers' compensation claim for her injuries.
Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.
Comcare took issue with the application of the Hatzimanolis test and took the matter all the way to the High Court to determine whether an injury (no matter how caused) is "within the course of employment" if it occurs:
- during an interval or interlude within an overall period or episode of work; and
- at a place the employer has induced or encouraged the employee to spend that interval or interlude at; and
- in circumstances where there is no disentitling behaviour (such as gross misconduct or the injury being self-inflicted).
The High Court answered, "no"; more is required than just being in a particular place when an injury occurs while "at work".
The employee was in the motel room because her employer induced or encouraged her to be there. However, her mere presence was not what caused the injury to occur. Her injury occurred because of an activity she engaged in which was without her employer's inducement or encouragement. Therefore, as the injury was not "within the course of employment", compensation was not payable.
Full Bench of the FWC considers definition of "at work" in bullying case
In their points of claim, they alleged that employees of DP World and officials of the Maritime Union of Australia (MUA) bullied them by, for example, posting inappropriate comments on Facebook.
Did bullying happen at work?
The MUA and DP World made an application to have certain points of the employees' claim struck out on the basis that the alleged bullying conduct did not occur "at work" within the meaning of section 789FD of the Fair Work Act. In that case, if the alleged conduct did not occur "at work", then the FWC would not have jurisdiction to hear the matter.
Deputy President Gostencnik referred the matter to the Full Bench of the Fair Work Commission. On 19 December 2014, the Full Bench determined, in  FWCFB 9227
, that "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). (at )
The Full Bench has remitted the matter to Gostencnik to determine the matter on the evidence. We will provide further updates when further developments on this issue arise.
Workplace bullying still needs to be considered case by case
While the Full Bench has somewhat expanded upon the definition of "at work", this does not mean than an employer will need to closely monitor every activity of their workers at any time or location. As noted in Comcare v PVYW, more is required than just being in a particular place when an incident occurs while "at work".
The Full Bench noted in the DP World decision that attaching meaning to section 789FD may give rise to arbitrary results. However, it acknowledged that the circumstances of each matter will need to be considered and decided on a case-by-case basis. We agree with that view.
Employers' obligation to protect employees' health and safety unchanged
Employers should have systems in place to prevent behaviour that could create a risk to health and safety of its workers from occurring in the workplace and to deal effectively
with any complaints or allegations of bullying as and when they arise.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.