Workplace Bullying – Never acceptable in today’s workplace’s but what about when you are a volunteer?
Section 7 of the Work Health and Safety Act 2011 (‘WHS Act’) defines who is a worker for the purposes of that Act. Section 7(1) provides:
Meaning of worker – A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:
- an employee; or
- a contractor or subcontractor; or
- an employee of a contractor or subcontractor; or
- an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
- an outworker; or
- an apprentice or trainee; or
- a student gaining work experience; or
- a volunteer; or
- a person of a prescribed class.
The term “volunteer” used in s 7(1)(h) is defined in s 4 of the WHS Act as “a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).”
s 789FC of the Fair Work Act 2009 – Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others (C2018/7096) – Volunteer participant in Government-funded program – Found to be a worker
Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others showed that a person who was both a client and a volunteer with a service was ultimately considered a worker. The appeal judge overturned the original finding, that Mr. Bibawi was not a worker. The original finding, that he was not a worker, was made in part because he benefitted from the service he participated in as a volunteer. Initially, the Commission dismissed Mr. Bibawi’s application for an order to stop bullying. The Commission found that Mr. Bibawi did not satisfy the definition of a worker and held no jurisdiction to determine the application. On appeal, Mr. Bibawi contended he undertook work in any capacity for’ Stepping Stone consistent with the WHS Act definition. The Full Bench found Mr. Bibawi satisfied the definition of ‘worker’ and was thus competent to make an application for an order to stop bullying under s.789FC. The Full Bench Found that even though the work performed by Mr. Bibawi was done as part of a program funded by the Government, there was nothing in s.7(1) of the WHS Act (or elsewhere) which would exclude Mr. Bibawi from the definition for this reason.
Was the person AT WORK when the alleged bullying behavior occurred?
Under the WHS Act – the definition of workplace is “Any place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. This may include offices, factories, shops, construction sites, vehicles, ships, aircraft or other mobile structures on land or water”.
WHAT DOES BULLYING MEANING?
- Workplace bullying is a psychological hazard that has the potential to harm a person, and it also creates a psychological risk as there is a possibility that a person may be harmed if exposed to it.
- It is defined as repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
- Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.
- Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.
- Please note that a single incident of unreasonable behaviour is not considered to be workplace bullying, however it may have the potential to escalate and should not be ignored.
Supporting case law
In a recent application the Fair Work Commission by Ms A [2018] FWC 4147, a strata management company in Brisbane, was successful in obtaining an order to stop bullying behavior from the chairperson of a strata committee. Deputy president Asbury ruled that a “war engaged in by email” was not an appropriate way to raise management issues. Particularly, the use of sarcastic and derogatory language in emails, combined with the excessive number of emails, and the publication of those exchanges to other members of the committee was unreasonable. An order to stop Bullying was successful.
Section 28 of the WHS Act imposes four specific duties on a worker. While at work, the worker must:
- take reasonable care for his or her own health and safety.
- take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.
- Comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the ‘person conducting a business or undertaking’ (PCBU) to allow the PCBU to comply with the WHS Act and the Work Health and Safety Regulations 2011(WHS Regulations)
- co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.
For support when it comes to complaints of Bullying within a workplace contact the team at Fresh HR Insights