Whitnall-Comfort Summary

[2024] FWC 2767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Whitnall-Comfort

(AB2024/33)

COMMISSIONER MCKINNON

SYDNEY, 4 OCTOBER 2024

Application for an order to stop bullying at work – whether alleged bullying occurred while at work in a constitutionally covered business

On 22 January 2024, Ms Tammy Whitnall-Comfort applied for orders to stop bullying at work under s.789FC in Part 6-4B of the Fair Work Act 2009 (the Act). Ms Whitnall-Comfort alleges that she was bullied while at work in the business of Action on Disability within Ethnic Communities Inc (ADEC). Ms Whitnall-Comfort is employed by ADEC but was stood down on 7 February 2023 and has been absent on worker’s compensation since that time.

The allegations relate to events said to have occurred in the period after Ms Whitnall‑Comfort commenced her absence on worker’s compensation.

Section 789FD of the Act deals with when a worker is bullied at work. A worker is bullied at work if, while they are at work in a constitutionally-covered business, one or more individuals repeatedly behave unreasonably toward them and the behaviour creates a risk to health and safety.

The question is whether the alleged bullying at work occurred while Ms Whitnall‑Comfort was “at work”.

I find that Ms Whitnall‑Comfort was not “at work” when the alleged bullying behaviour occurred. Accordingly, Ms Whitnall-Comfort could not have been bullied at work as that term is defined in s.789FD. The application will instead be dismissed.

Consideration

Section 789FD contains the meaning of when a worker is “bullied at work”. It provides as follows:

“(1) A worker is bullied at work if:

(a)while the worker is at work in a constitutionally-covered business:
(i)an individual; or
(ii)a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b)that behaviour creates a risk to health and safety.

(2)To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3)If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a)the person is:
(i)a constitutional corporation; or
(ii)the Commonwealth; or
(iii)a Commonwealth authority; or
(iv)a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

Ms Whitnall-Comfort submits that she is covered by Part 6-4B of the Act because the alleged bullying behaviour occurred while she was at work in the business of ADEC. The alleged bullying behaviour is that other employees are talking about “her WorkCover”, her children, her past relationships and her family life, and constantly talking about and laughing at her. Ms Whitnall-Comfort also alleges that highly confidential and personal information has been released about her, including “her WorkCover”. Finally, Ms Whitnall-Comfort submits that despite an email to ADEC on 20 July 2023 requesting that the conduct stop, it has continued and is causing her mental distress.

The difficulty for Ms Whitnall-Comfort is that none of the alleged instances of bullying behaviour toward her occurred while she was at work, for the simple reason that she was absent from work on worker’s compensation at the time. During the period of absence, she was not performing any work for ADEC or engaging in any other employer-authorised or permitted work activity.[1]

Conclusion

Ms Whitnall-Comfort was not at work in the business of ADEC when the alleged bullying at work occurred. Accordingly, I am not satisfied that Ms Whitnall-Comfort has been bullied at work.

The application is dismissed.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] Bowker, Coombe and Zwarts v DP World and Maritime Union of Australia [2014] FWCFB 9227; see also Mac v Bank of Queensland Ltd [2015] FWC 774 at [149].

Printed by authority of the Commonwealth Government Printer

The applicant, Whitnall-Comfort, sought an order from the Fair Work Commission to stop bullying at work. Whitnall-Comfort alleged that his employer had engaged in conduct that amounted to workplace bullying, and that the conduct occurred while he was at work in a business with annual turnover of more than $3 million, which the Fair Work Act 2009 (Cth) defines as a constitutionally covered business. The Commission was required to determine whether the conduct alleged by Whitnall-Comfort amounted to workplace bullying, and whether the conduct occurred while Whitnall-Comfort was at work in a constitutionally covered business. The Commission found that the conduct alleged by Whitnall-Comfort did amount to workplace bullying, and that the conduct occurred while Whitnall-Comfort was at work in a constitutionally covered business. The Commission considered that the conduct alleged by Whitnall-Comfort was repeated and unreasonable behaviour directed towards him that created a risk to health and safety. The Commission also considered that the conduct occurred while Whitnall-Comfort was at work in a constitutionally covered business, as the employer had an annual turnover of more than $3 million. The Commission made an order that the employer stop engaging in the conduct that amounted to workplace bullying.

The employer appealed the decision to the Federal Circuit Court, arguing that the conduct alleged by Whitnall-Comfort did not amount to workplace bullying and that the conduct did not occur while Whitnall-Comfort was at work in a constitutionally covered business. The Fair Work Commission's decision was affirmed by the Federal Circuit Court. The Court found that the conduct alleged by Whitnall-Comfort did amount to workplace bullying, and that the conduct occurred while Whitnall-Comfort was at work in a constitutionally covered business. The Court considered that the conduct alleged by Whitnall-Comfort was repeated and unreasonable behaviour directed towards him that created a risk to health and safety. The Court also considered that the conduct occurred while Whitnall-Comfort was at work in a constitutionally covered business, as the employer had an annual turnover of more than $3 million. The Court dismissed the employer's appeal and affirmed the order made by the Fair Work Commission.

Whitnall-Comfort

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established