When is a worker really at work?

Increased connectivity has changed the way in which colleagues communicate. social media platforms and use are no longer restricted to an employee’s private life, and have in fact contributed

to blurring the fine line between personal and professional lives of employees. It can be easy to see why the Fair Work Commission (FWC) had immense trouble juggling this ever-thinning boundary in the decision of Bowker & Others v DP World Melbourne Limited (2014) (Bowker).

In Bowker, the applicants alleged that they had been bullied by members and officials of the Maritime Union of Australia (MUA). The alleged ‘unreasonable and insulting’ behaviour included Facebook comments labelling Bowker a “scab” and “lagger”. MUA sought to have the application struck out, as they claimed the comments were not made whilst the perpetrators were at work.

In filing for a Stop Bullying Order under the Fair Work Act 2009 (Cth) (FW Act) anti-bullying provisions, the FWC was obliged to examine the definition of ‘at work’.

In the Full Bench’s view,

“The concept of being ‘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”.

It followed that it is enough to constitute bullying at work if the employee accessed the Facebook comments, while at work or on a permitted break. The FWC emphasised that the purpose of the FW Act was to give the most appropriate relief to employees, and this must be undertaken to the greatest extent possible.

Despite the FWC deciding that the meaning of ‘at work’ should be decided on a case by case basis, they firmly held that the perpetrator did not have to be at work when the bullying took place. However, all cyber-bullying must have a relevant or ‘temporal’ connection to the workplace in order to bring a claim for a Stop Bullying to the FWC.

So what does this mean for Businesses? Can Employers be expected to regulate employees social media use in their private lives?

Employers must remain vigilant to prevent bullying in the workplace, particularly given the reach of social media platforms. Despite the FWC taking a hard stance on workplace bullying, this decision should not cause alarm.

Employers can take the following steps to ensure that they are properly protected against any claims of workplace bullying that may arise:

  1. Implement a comprehensive Social Media Policy, to help clarify what is and is not acceptable online behaviour;
  2. Ensure that all employees are aware of the consequences of engaging in bullying or cyber-bullying behaviour; and
  3. Take appropriate action when allegations are made.

With his wealth of experience, Jonathan Mamaril, Special Counsel, of NB Lawyers can ensure that your employees are protected with a tailor made Social Media Policy.

For further information please contact Jonathan Mamaril, Principal & Director on 07 3876 5111 or email jonathanm@nb-lawyers.com.au.

Written by

Jonathan Mamaril
Principal & Director, NB Lawyers – the Lawyers for Employers
07 3876 5111
jonathanm@nb-lawyers.com.au

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