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

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

• [1] 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.

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

• [3] 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.

• [4] The question is whether the alleged bullying at work occurred while Ms Whitnall‑Comfort was "at work".

• [5] 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.

• [6] Section 789FD contains the meaning of when a worker is "bullied at work". It provides as follows:

(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:

(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."

• [7] 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.

• [8] 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]

• [9] 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.

[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].

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