Bullying under the Fair Work Act
Pt 6-4B of the Fair Work Act 2009 (Cth) entitles an employee to make a claim for an order to stop bullying. The Fair Work Commission is empowered to make a variety of orders that would have the effect of stopping the bullying.
For the Commission to make an order to stop bullying, they must be reasonably satisfied that the worker is being bullied at work and that behaviour creates a risk to health and safety (s789FD Fair Work Act Cth (2009)).
Section 789FD of the Fair Work Act 2009 (Cth) defines workplace bullying as repeated, unreasonable behaviour towards a worker, or a group of workers of which the worker is a member. The workplace bullying must occur ‘at work’.
What is bullying at work?
In Bowker and Ors v DP World Melbourne Limited T/A DP World the Ors  FWCFB 9227, the Full Bench explored and defined what the meaning of ‘at work’ meant. In that case, three employees sought an order to stop bullying pursuant to the Anti-Bullying provisions of the Fair Work Act 2009 (Cth). Two of the employees alleged instances of bullying, including allegations that Facebook posts were made which contained unreasonable and insulting allegations against them.
The Full Bench determined that for bullying to occur ‘at work’, there must be a temporal connection between the bullying behaviour and the worker being ‘at work’. A worker will be deemed to be ‘at work’ if they are performing work or engaging in an activity authorised by their employer, whether or not the worker is in the workplace or not. As such, a worker may be ‘at work’ when they are browsing social media on an authorised meal break, or when they are browsing social media while performing their duties.
Do the social media posts need to be made at work?
The Full Bench stated in Bowker and Ors that it will not focus on when or where the bully is at the time of making a Facebook post. Therefore, although an inappropriate Facebook post may be posted by the bully outside of work hours, the bullying behaviour will continue as long as the post remains on Facebook. If the worker accesses the post while they are ‘at work’, the post may constitute bullying at work.
If you have any further questions in regards to workplace bullying or other employment law matters, do not hesitate to contact our lawyers about your rights.