For a worker to be covered by the Commission’s jurisdiction to stop workplace bullying and/or sexual harassment, the alleged bullying and/or harassing behaviour must occur while the worker is ‘at work’.
The phrase ‘at work’ is not defined in the legislation.
When considering whether a person is ‘at work’, the focal point of the inquiry is the worker (the applicant).
The individuals engaging in the bullying or sexual harassment do not need to be workers – for example, they could be customers of a business. There is no requirement that these individuals must also be ‘at work’ at the time they engage in the alleged bullying or sexual harassment.
The term 'at work' can encompass a range of circumstances. Whether a worker is ‘at work’ will usually be straightforward, but not always. It will depend on the context, including custom and practice and the nature of the worker’s contract.
The Commission has considered the meaning of ‘at work’ in several decisions concerning applications to stop bullying at work. In these cases, the Commission has found that being ‘at work’ is not limited to a physical workplace or the times at which a worker is performing work. It may include the performance of work at any time or location, as well as when the worker is engaged in some other activity which is authorised or permitted by their employer. The Commission has found that a worker can be at work even though they are not working (for example, because they are on an authorised meal break or at a work event or on a coffee break).
The expression ‘at work’ has also been held to extend to where the employer had authorised the worker taking special paid leave and thereafter suspended their employment. The worker was considered to be 'at work', notwithstanding his absence from the work location and non-performance of the usual daily responsibilities associated with his role, as the periods of absence were authorised and directed by his employer and the applicant 'acted' accordingly by complying with the same.
Orders to stop bullying or sexual harassment (or both) can be based on conduct outside the workplace if the conduct ‘relates to work’ or where the applicant was performing activities that were ‘closely connected to work’. Whether the necessary connection is present depends on the particular facts and circumstances of the case.