Fair Work Commission examines nexus between work and the online world following Facebook furore

The Fair Work Commission has recently denied an employee’s application for stop bullying orders where the alleged bullying occurred on Facebook and was not directly connected to the work the employee was expected to perform.

Introduction

One contentious issue that has emerged from the evolution of social media is whether conduct that transpires ‘online’ can be deemed to have occurred ‘at work’. This has given rise to contemporary challenges for the FWC and the issuing of stop workplace bullying orders. The case of E. E. v Australian Association of Social Workers  [2022] FWC 3019 was one such example where the nexus between work and the online world was explored.

Facts

In the case of E. E. v Australian Association of Social Workers, the applicant was a director of the Australian Association of Social Workers (AASW). The applicant applied to the FWC for a stop bullying order following various online comments that criticised her ethicality as an AASW director. The comments were posted by colleagues of the applicant on an AASW Facebook page (regulated by company moderators) in response to her public endorsement of a candidate during the AASW election. The applicant contended that this page ‘became a vehicle for AASW members to bully directors by posting unreasonable negative comments and misinformation’. The respondents opposed these contentions and submitted that no anti-bullying order could be supported on the facts because the impugned conduct:

• did not occur ‘at work’
• was not repetitive, nor unreasonable
• did not subject the employee to any adverse health or safety risks.

Deputy President Beaumont supported this position and held that the alleged conduct did not satisfy the ‘at work’ requirement so as to enliven the FWC’s jurisdiction to make a stop-bullying order and dismissed the application.

Bullying must occur ‘at work’

Under section 789FF of the Fair Work Act 2009 (Cth) , the FWC may grant stop bullying orders in a workplace where it is satisfied that the worker has been subjected to ‘bullying’ ‘at work’, and there is a threat that such conduct will continue.

In the case of E. E. v Australian Association of Social Workers, the FWC found that each of comments were posted in a virtual domain and concerned the ethical behaviour of the applicant as a company director during the electoral process.

Notwithstanding this fact, the FWC identified that the modern workplace can extend beyond the physical to the virtual and online world. Therefore, work-related posts may satisfy the requisite ‘at work’ threshold where they were ‘rationally connected’ to the work the employee was engaged to perform. Consequently, the FWC found that, while the comments were critical of the applicant, by no means did they relate to the work she was required to perform. Rather, the applicant had voluntarily engaged with the AASW elections Facebook page, which was not a requirement in her role as a director. Hence, the application for stop bullying orders was dismissed on the grounds the conduct did not materialise at work.

Did the respondents’ conduct constitute bullying?

Under section 789FD(1) of the Act, a worker is bullied at work where an individual engages in repeated unreasonable conduct towards another worker, and such conduct causes a health and safety risk. The Deputy President did not find that the respondents’ conduct constituted bullying. Contrary to the applicant’s contentions, the respondents’ comments were ‘genuinely held opinions’ and in no way intended to propagate misrepresentations of fact that disparaged the applicant as a company director.

Likewise, the FWC acknowledged that, even where the respondents could be held to have acted unreasonably, it was a single act or omission. Bullying requires a course of conduct that is persistent and that has the capacity to unduly compromise the health and safety of a worker. Thus, it would have been inappropriate for the FWC to grant a stop‑bullying order.

Implications for employers

This case highlights the variety of forms in which workplace bullying can manifest in contemporary times. It is well‑established that ‘work’ is not confined to a rigid and immutable definition. As well as implementing measures that adequately guard against bullying in workplaces, employers must also be cognisant of how such behaviour can materialise beyond the physical realm of work. This highlights a broader issue at play – that the lines between one’s work and one’s private life have seemingly become obscured.

Employers should take a proactive approach to eliminating bullying at work. Whether it be the way employees behave at work, or how they interact in their virtual domains, employers should have updated policies in place that explicitly outline the expectations of employees in the multiplicity of environments where bullying may transpire.