A recent Australia Fair Work Commission decision has clarified that anti-bullying protections are not available to employees who are absent on workers’ compensation leave.
Among the various protections available under the Fair Work Act 2009, workers who reasonably believe they are being bullied in the workplace can seek relief from the Fair Work Commission by way of anti-bullying orders.
However, a recent decision has held that this protection is not available to workers who report being bullied while they are on workers’ compensation leave because they are not “at work” within the meaning of the act.
In the recent case of Whitnall-Comfort, Whitnall-Comfort applied for anti-bullying orders under Section 789FC of the act on the grounds that she was being bullied while on workers’ compensation leave.
Specifically, Whitnall-Comfort alleged that other employees were constantly laughing at her and discussing her family, children, past relationships, and WorkCover claim in her absence.
The question before the commission was whether the alleged bullying of Whitnall-Comfort occurred while she was “at work.” Pursuant to Section 789FD of the act, an employee is considered to be bullied at work if, among other things:
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