The fine line between criticism, bullying and what constitutes the ‘workplace’

Preventing bullying and harassment in the workplace has surfaced in recent years as a prominent area of concern for employers and employees alike. A worker who reasonably believes that they have been bullied or sexually harassed at work can apply to the Fair Work Commission (the FWC) for an order to stop that bullying or sexual harassment in accordance with Part 6–4B of the Fair Work Act 2009 (Cth) (the FW Act).

The recent decision of E. E. v Australian Association of Social Workers and others [2022] FWC 3019 found that online comments that did not have a rational connection to the work an employee is required or expected to perform did not constitute workplace bullying.

Facts

E.E is a director of the Australian Association of Social Workers (AASW) (the Association).

E.E alleged that she had been subjected to bullying by the Association and two named individuals due to an internal complaint made against E.E and online comments on a website moderated by the Association that E.E alleges were negative, critical and contained misinformation about her and the other directors. E.E alleges that as a result of the bullying, the psychological health of her and the other directors were at risk.

On that basis, E.E made an application to the FWC for an order to stop bullying (Anti-bullying Order) pursuant to section 789FC of the FW Act against the Association and two named individuals.

Decision

Under the FW Act, the FWC may make an Anti-bullying Order if it is satisfied that a worker has been bullied at work and there is a risk that they will continue to be bullied at work. A worker is ‘bullied at work’ if:

• the ‘worker is at work in a constitutionally-covered business’;
• while at work, an individual or group of individuals ‘repeatedly behaves unreasonably towards the worker’; and

• that behaviour ‘creates a risk to health and safety’.

The respondents contended that E.E had not been subjected to bullying as the conduct did not occur ‘at work’. In any event, they submitted that the conduct was not unreasonable, did not pose a risk to E.E’s health and safety, and did not amount to bullying.

The FWC dismissed the application on the basis that the bullying alleged by E.E did not occur ‘at work’.

The FWC recognised that the modern workplace extends to the virtual and online world but reasoned that work-related online posts would only occur ‘at-work’ if they had a rational connection with the work that the worker was required or expected to perform.

In this case, the FWC did not find there to be a rational connection between the online posts and E.E, as engaging with the online platform was not part of E.E’s role as a director. Accordingly, E.E’s involvement in the online platform was not a work-related activity and did not occur ‘at work’, notwithstanding the fact that the online platform was moderated by the Association.

Even if the conduct occurred ‘at work’, the FWC found that it would not amount to bullying. Although some Facebook comments were critical of the directors, including E.E, the comments reasonably expressed a genuinely held opinion as opposed to a misrepresentation of fact. The FWC stated that criticising the effective and proper conduct of employees at work, even a director, is not unreasonable in the workplace.

Additionally, the FWC found that E.E had not been subjected to repeated unreasonable behaviour from any of the respondents, and that there was no risk to E.E’s health and safety, especially in the absence of medical evidence or further details about the risk created to her health.

Take home messages

This case draws a distinction between work-related activities and activities outside the workplace and is a reminder that Anti-bullying Orders can only be sought with respect to bullying at work.

It is important for employees and employers to note that ‘the mere fact that a person might be incensed, upset, offended, indignant, or even outraged with the views of others does not mean that those views are unreasonable, nor does it establish that there is a risk to a person’s psychological or mental health and safety.’

For more specific information on any of the material contained in this article please contact Sathish Dasan on + 61 8 8217 1337 or sdasan@normans.com.au, Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au.