Part two of this article can be found here.

It’s a good time to take stock and reflect on the year that was. The cases that hit the headlines in 2015 had some important messages for employers with some common themes.

In this article, the first in a two-part series, we will look at how the Fair Work Act’s definition of 'at work' has been developed and also how bullying issues have evolved.

In our next article, we will look at case law covering the themes of workplace culture, procedural fairness and what can happen when an authority oversteps the mark.

WHEN IS EMPLOYEE CONDUCT CONSIDERED TO BE 'AT WORK'?

One of the hallmarks of the Fair Work Act is that the employee conduct must have occurred 'at work'. In Bowker, the Fair Work Commission (FWC) considered whether posting comments on social media could be considered 'at work'. It found that it was not a question of when the comments were posted but rather when they were accessed by the targeted workers. If access occurred while they were at work, it was a sufficient connection.

In another matter that considered an application for a Stop Bullying Order (SBO), the FWC seemed to extend the Bowker decision, saying that cyberbullying could happen anywhere. If the parties were connected on Facebook because of their work relationship, that was 'at work'.

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In Keenan, drunken and offensive behaviour during and after the office Christmas party led to termination of employment. The FWC found that the party was a sanctioned company event and therefore the conduct occurred 'at work'.

Although Deeth was charged with a serious criminal offence unconnected with his work, his employer terminated his employment. The FWC found that the alleged criminal conduct alone was not a valid reason to dismiss because it was not 'at work'. There needed to be a proper investigation establishing a connection with the employee’s work.

These cases are varied in their factual circumstances, but they serve as useful reminders to employers that:

• 'At work' includes social media activity. It appears that the law will develop to the extent that an online connection between two work colleagues will be sufficient to satisfy the requirement.
• Employer-sanctioned Christmas parties and after-hours events are considered to be 'at work' and employers should take reasonable precautions to ensure they are without incident.
• Even criminal charges won’t give rise to an automatic right to terminate employment. Procedural fairness is paramount – there must be a proper investigation, as we will explore in Part 2 of this series.

DEVELOPMENTS IN WORKPLACE BULLYING

For good reason, workplace bullying remains a hot issue. A happy workplace is a productive workplace but even so, it seems there are ever increasing ways for bullying to occur.

In 2015 the FWC issued its first formal ruling for an SBO since the new legislative provisions came into effect. Two employees complained of bullying conduct by a manager. There was an informal investigation, an unsuccessful mediation and ultimately the manager resigned but was later seconded back to the workplace.

The FWC found a real risk to the workplace health and safety of the workers and that the employer had not taken the issue seriously.  The FWC issued orders, to remain in force for two years. As we have already seen, the cases of Bowker and a subsequent SBO application dealt with the very serious and growing issue of cyberbullying. In its decisions, the FWC has made it clear that employers have a duty of care to ensure the workplace health and safety of all employees and this includes in online and social media environments.

Employers must:

• Take seriously any complaints concerning the conduct.
• Take immediate action to stop the conduct.
• Have proper policies and procedures and educate all staff about appropriate conduct.

What constitutes an employee being 'at work' and the ever expanding realm of workplace bullying continues to dominate the case law landscape. It is clear that employers must remain vigilant in monitoring employee behaviour and educating all staff about appropriate conduct, particularly online. These issues are, in short, a product of our modern world, and there are important lessons to be learned from these cases.