Employees on Workers Compensation are not eligible for Stop Bullying orders 

A 2024 Fair Work Commission decision has ruled that anti-bullying protections are not available to those employees who are on workers’ compensation leave. 

This decision has raised concerns among workers’ rights advocates, as it may leave injured employees vulnerable to workplace harassment. The ruling dives into a grey space that exists within employee rights and harassment within the workplace.

Dissecting The Case

The 2024 case of Whitnall-Comfort, heard before the Fair Work Commission, brought the question of whether or not workplace bullying claims required the victim to be present at work. 

In the case, Ms Whitnall-Comfort claimed she was being bullied by her colleagues whilst on workers’ compensation leave. The dilemma present within this case was that Ms Whitnall-Comfort was not actually at the workplace, she was on her compensation leave. 

Dissecting The Legislation

Ms Whitenall-Comfort applied for her anti-bullying claim under section 789FC of the Fair Work Act 2009 (Cth), stating that she was being bullied while on workers’ compensation leave. Under this section, in order for her to have been considered a victim of bullying ‘at work,’ she had to determine that she was being subjected to:

• an individual or a group of individuals repeatedly behaving unreasonably towards her as an employee or her as part of a group of employees of which the she was a member and;
• unreasonable behaviour creating a risk to health and safety.

The Fair Work Commission found that during the period she was claiming, Ms Whitnall-Comfort was on workers’ compensation leave and did not perform any work during this time period. 

Consequently, the commission found that no bullying at the workplace was present, ruling that any future claims could not be sought if the individual was on leave whilst the specific bullying complaint had been made. 

The Grey Space

This ruling highlights a grey area in employee rights when it comes to harassment and bullying in the workplace. While the Fair Work Commission emphasised the importance of being physically present in the workplace to be eligible for anti-bullying protections, it raises questions about the extent of employer responsibility during an employee’s absence. 

Workers on compensation leave may still experience harassment or emotional distress, but under this ruling, they are left without formal recourse. This situation presents a challenge in balancing legal protections with the realities of workplace dynamics, potentially.

Conclusion

The 2024 Fair Work Commission ruling has sparked concerns about the rights of employees on workers’ compensation leave, as it denies them anti-bullying protections. 

By focusing on physical presence at the workplace, the decision leaves a grey area in addressing bullying that can persist during an employee’s absence. This ruling challenges the balance between legal protections and the evolving nature of workplace harassment, particularly for vulnerable employees.

Read the case in full here.