Employees on workers’ compensation leave not eligible for stop bullying orders

Among the various protections available under the Fair Work Act 2009 (Cth), workers who reasonably believe they are being bullied in the workplace can seek relief from the Fair Work Commission by way of anti-bullying orders.

However, a recent decision has held that this protection is not available to workers complaining of bullying while they are on workers’ compensation leave because they are not ‘at work’ within the meaning of the Act.

Recent decision of the Fair Work Commission

In the recent case of Whitnall-Comfort [2024] FWC 2767, Ms Whitnall-Comfort applied for anti-bullying orders under section 789FC of the Act on the grounds that she was being bullied while on workers’ compensation leave.

Specifically, Ms Whitnall-Comfort alleged that other employees were constantly laughing at her and discussing her family, children, past relationships, and her WorkCover claim in her absence.

The question before the Commission was whether the alleged bullying of Ms Whitnall-Comfort occurred while she was ‘at work’. Pursuant to section 789FD of the Act, an employee is considered to be bullied ‘at work’ if, among other things:

• an individual or a group of individuals repeatedly behaves unreasonably towards the employee, or a group of employees of which the employee is a member; and
• the unreasonable behaviour creates a risk to health and safety.

Where an employee’s claim satisfies these elements, the Commission has the discretion to make stop bullying orders.

The Commission found that during the period of Ms Whitnall-Comfort’s workers’ compensation leave, she did not perform any work or any other employer-authorised work activity. In that respect, she was not being bullied ‘at work’ within the meaning of the Act at the time of the alleged instances of bullying. Accordingly, no anti-bullying protections were made and the claim was dismissed.

Takeaways

Employees may only seek anti-bullying protections in circumstances where they are being bullied ‘at work’. Instances of bullying that occur while an employee is on leave or not engaging in employer-authorised activities are unlikely to attract the benefits of the protection.

In any event, employers must remain aware of their duty to eliminate health and safety risks in the workplace so far as reasonably practicable.

Taking a proactive approach to managing workplace bullying will enable employers to identify unreasonable behaviour, implement control measures and mitigate risks accordingly.

If you have any questions about workplace bullying or employer’s duties, please contact a member of workplace relations and safety team.