Workplace Bullying - Can a business be responsible for bullying outside of work hours?

The Fair Work Commission recently heard a case in which three employees sought an order to stop bullying at their workplace. Their employer, DP World Maritime Limited, sought to strike out their application on the basis that the bullying behaviour took place when the employees were not ‘at work’.

Numerous employees had engaged in telephone calls and Facebook messages concerning their colleagues’ union memberships and made derogatory comments to and about them. These exchanges took place both during and outside of office hours in several locations both in and outside of the workplace.

The Commission had to consider the definition of the expression ‘while the worker is at work’ and what it encompassed. The Commission concluded that the concept of being ‘at work’ includes instances in which the employee is performing work and also when they are engaged in any other activity permitted by their employer, such as taking a meal break. The meaning is not confined to the workplace and includes any location or time of day when they are performing work. 

In this case, the Full Bench held that the behaviour took place while the employees were ‘at work’ leaving their employer at risk of liability for their actions.

If allegations of bullying have been made in your business, contact Nevett Ford Melbourne on (03) 9614 7111 and ask to speak to one of our workplace relations team about protecting yourself from legal action.

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Workplace Policies Traps for Employers

An employer who did not follow its own workplace policies has been successfully sued for breach of contract in the Full Court of the Federal Court.

The worker was a second officer on a supply ship and employed by Farstadt Shipping (Indian Pacific) Pty Ltd. 

Like most employers, the company had a Workplace Harassment and Discrimination Policy in place which set out the procedure for dealing with complaints. When the worker made a complaint of sexual discrimination, the procedures were not followed.

The Court had to determine whether the workplace policy formed part of the employment contract for the purposes of deciding whether there had been a breach of contract.

It was found that the policy did form part of the employment contract, binding the employer to its obligations to investigate complaints in accordance with its established procedures.

It was successfully argued that the employer failed to follow its own policies and, in failing to comply with them, breached its employment contract.

The Court found the employer had breached the worker’s contract of employment and ordered the employer to pay the worker’s costs.

While it is important to ensure your business has policies in place on issues such as bullying and harassment or drugs and alcohol, employers should ensure these policies do not form part of their employment contracts, lest they become a binding upon you.

To have your contracts reviewed, ensure their compliance with the legislation and minimise risk to you as an employer, contact Nevett Ford Melbourne on (03) 9614 7111 and ask to speak to a member of our workplace relations team.

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