Recently, the full bench of the Fair Work Commission (FWC) has reserved its decision on whether it will hear an alleged workplace bullying matter. What sets this matter apart from others is that it relates to alleged events, including cyberbullying, that occurred outside the physical workplace. Whether or not this case will be heard hinges on two words: “at work”.
The decision of the FWC to hear this case will rely on how the FWC interprets the definition of ‘workplace bullying’ as it was outlined in the amendments to the Fair Work Act 2009 (Cth) that came into effect in Australia, January 2014.
The definition of ‘workplace bullying’ as it appears in the FWC’s (Anti-bullying) Benchbook is as follows [See Fair Work Act s.789FD(1)]:
Workplace bullying occurs when:
• an individual or group of individuals repeatedly behaves unreasonably towards a
worker or a group of workers at work,
• the behaviour creates a risk to health and safety.
(Note: the key words are bolded in the FWC Benchbook.)
It was only a matter of time before workplace bullying which extends beyond the workplace and/or out of workplace hours would come under closer scrutiny of the Fair Work Commission, and particularly the interpretation of the phrase “at work”.
As a point of interest, this very topic was addressed in an ‘opinion piece’ published on the Know Bull! website earlier this year in April 2014.
It’s all a matter of ‘interpretation’…
In a nutshell, before laws can be applied they need to be interpreted. And how a law is interpreted…will strongly affect how future (similar) cases are dealt with.
So when a court, or a judge, or a body such as the Fair Work Commission is presented with a case that is ‘new’ i.e. that doesn’t have a former body of decisions to be relied on…the case then has the potential to become a ‘test’ case, and as such be influential in deciding similar cases that come along later.
When it comes to ‘defining’ workplace bullying there’s basically two camps…
There’s the lawyers and individuals defending those who allegedly perpetrated the workplace bullying, who prefer to interpret the definition of workplace bullying as strictly relating to events that solely occur ‘at work’.
And there’s lawyers and individuals who initiate a charge of alleged workplace bullying who prefer a more liberal interpretation of the definition of workplace bullying to include those events that occur outside the workplace, and which are simply an extension of the workplace bullying that occurs in the physical workplace.
Workplace bullying is not ‘new’ – workplace bullies have simply evolved with the technology that’s available.
Workplace bullying has been around for thousands of years. You only need to think about the conditions endured by the slaves who built the pyramids, or those of soldiers who fought in various conflicts throughout the centuries. But what has changed is the advent of technology.
The workplace bully is, and always will be a destructive, morally bankrupt individual. And while they prefer close combat…where they can personally see the harm and the damage they’ve created at close quarters…technology has provided them with the means to deliver the workplace bullying out-of-hours, and right into the target’s home.
With the introduction of mobile phones, email, and various social media platforms – the workplace bully now has additional ‘tools’ in their arsenal to extend their bullying assault beyond the workplace and workplace hours. Consequently, many targets today never get any respite from the workplace bullying.
Hopefully, common sense will prevail…
Both forms of bullying…the ‘up-close-and-personal-in-your-face kind’, and ‘cyberbullying’ have equally devastating effects on the bullied ‘target’.
It’s a sad reality that many laws are inadequate, or fall short even before the ink used to draft them has barely had time to dry. Another sad reality is that workplace bullying can and does extend beyond the physical workplace, and office hours.
Trying to limit the scope of the law to only apply to bullying events that occur ‘at work’ will result in injustice to those ‘targets’ who also suffer workplace bullying that has extended into their home lives and off-work time. But this is exactly what many organisational lawyers, workplace bullies, bully enablers and protectors, and industry groups want…that the ‘anti-bullying’ jurisdiction be severely ‘hobbled’ from the outset.
As for the reason? It’s about limiting the ‘liability’ of workplace bullies and the organisations that protect them. If alleged bullies are only held accountable for half the workplace bullying that occurs i.e. those events that solely occur within work hours and on work premises…you limit the liability. When you limit liability…you limit potential financial repercussions when the parties concerned are found to be guilty. It’s the classic ‘bottom line’ vs a person’s right to be treated with respect and dignity.
It’s about the longevity of the effects of workplace bullying…
When an employee severs ties with a workplace where the bullying is predominantly the ‘up-close-and-personal-in-your-face kind’…they can begin the healing process. This healing process can be a few to many years, and full recovery is very rare.
However, where ‘in office’ workplace bullying is accompanied with ‘cyberbullying’ the healing process is delayed, or in many instances doesn’t occur, simply because the bullying that appears in ‘cyberspace’ is pretty much permanent. It remains there for potential employers and recruitment firms to see. It affects a ‘target’s’ future job prospects and earning capacity. And even though ties with the ‘bully’ organisation may have been severed…the bullying lives on.
Workplace bullying needs to be recognised as not something that occurs only within the workplace and solely during work hours. It’s reach is way more pervasive than those who defend it are prepared to acknowledge, or accept. And this is why this case is so important.
Update to the above case…
Early February 2015, the Full Bench of the Fair Work Commission (FWC) decided on the alleged workplace bullying case mentioned above (Bowker v DP World Melbourne Limited).
Curiously, the employer and the union jointly sought to have (various) allegations relating to bullying on social media struck out, as the alleged bullying behaviour fell outside the work environment, and therefore what they perceived as ‘at work’. The employees on the other hand were argued that even if bullying behaviours occurred on social media and outside working hours – it should be deemed as occurring ‘at work’, if the alleged bullying had a strong connection to work.
When it comes to social media platforms such as Facebook, the FWC has held that comments made outside work hours may be considered as ‘unreasonable’ and amount to bullying ‘at work’ – if the ‘target’ accesses these comments while they’re ‘at work’.
The law firm DibbsBarker, has produced an informative and succinct website article about Bowker v DP World Melbourne Limited, that’s well worth a read.