By Natasha Duff
Since relatively recent legislative changes have enabled employees to take cases of workplace bullying to the Fair Work Commission, employee interaction on social media has been found on several occasions as relevant in determining such cases. Two major ways that the Fair Work Commission has asserted this implication include finding that:
- social media posts will be deemed as bullying “at work” if the posts are “viewed at work”; and secondly,
- unfriending a colleague on a social media website can be counted towards substantiating a claim of bullying.
What is bullying ‘at work’?
The provisions on workplace bullying are set out in Part 6-4B of the Fair Work Act 2009 (Cth). Section 789FD provides the grounds for establishing bullying at work, stating:
“A worker is bullied at work if, while the worker is at work in a constitutionally-covered business, an individual or a group of individuals repeatedly behaves unreasonably towards the worker… and that behaviour creates a risk to health and safety”.
In the case of Bowker & Ors v DP World Melbourne Limited T/A DP World; MUA and Others  FWCFB 9227 the scope of the phrase “at work” came into question after allegations were brought (amongst others) that various unreasonable and insulting Facebook posts were made by the respondents about the applicants. As the determination of the interpretation of the expression “at work” was of recognisable importance, it was referred to the Full Bench of the Fair Work Commission along with extending an invitation for submissions on the question to ACCI, Ai Group and ACTU.
What the Bench determined was that bullying occurs “at work” if it occurs while workers are performing work; that “at work” includes any time or place where the employee is authorised to perform work for the employer or any activity that is authorised by the employer such as meal breaks or checking social media at work; and that bullying social media posts need not be posted at work to be counted as workplace bullying – it is enough if the victim worker sees them at work.
The Bench rejected the applicants’ submission that conduct occurred “at work” if it had a “substantial connection to work”, and also rejected the respondents’ submission that a worker would have to be at work at the time a bullying social media post was made. Instead, the Bench concluded that the legal meaning of “while the worker is at work” meant the conduct must have occurred while the worker is “performing work”, and even that is not to be limited to the point in time when the comments were first posted, but that bullying behaviour would continue for as long as the comment remained posted on the social media site. The worker therefore need not be “at work” at the time the comments were posted; it is enough that they viewed the comments at some later stage while “at work”.
While many may consider their behaviour on personal social media accounts as being irrelevant to their professional conduct, this case supports quite the opposite and highlights how bullying social media content has an ongoing implication in establishing the grounds for workplace bullying before the Fair Work Commission. This leads to the second important decision associating workplace bullying with social media, which addressed the types of social media conduct that can support allegations of workplace bullying.
Is deleting a colleague off Facebook workplace bullying?
In Mrs Rachael Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird  FWC 6556, the act of “unfriending” a colleague on social media was taken into consideration when establishing workplace bullying. Unfriending a colleague was not found to be workplace bullying in and of itself, however, when coupled with other ongoing and unreasonable behavior, was seen as indicative of unreasonable behavior.
In this case, some of the alleged bullying included:
- belittling and humiliating comments in front of others;
- refusing to let the Applicant adjust the air-conditioning temperature;
- requiring the Applicant wear a uniform when other employers weren’t required to do so;
- deliberately delaying performing any administrative tasks for the Applicant;
- directing potential clients away from the Applicant, posing a disadvantage to her;
- not acknowledging the Applicant; and
- eavesdropping on the Applicant’s telephone conversations.
So, when considering the act of unfriending the applicant in these circumstances, you can see how it would be perceived as contributing to the sum total of establishing workplace bullying conduct.
Considering the impacts of social media in the workplace.
We can see from these two cases alone that social media activity can be hugely relevant in allegations of workplace bullying. Not only can private use of social media be considered as grounds for establishing workplace bullying, it is also not limited by the confines of a physical place of work, and can be deemed as bullying regardless of when and where the perpetrator makes the post.
As an employer, it is important to address the use of social media in workplace bullying policy, as it is beyond doubt that social media conduct will continue to be brought into matters of workplace bullying. As an employee, do not consider your private use of social media as being irrelevant to allegations of bullying conduct in the workplace – every post you make, be aware that it can be used as evidence to support allegations of workplace bullying. Better yet, do to others what you would have them do to you and don’t put anything on social media that might insult or humiliate.
Should you need assistance with the drafting of anti-bullying policies for your workplace, or if you feel you are being subjected to workplace bullying, please contact one of our Business Development Officers today and make an appointment to see one of our Brisbane Employment lawyers.