In a recent Fair Work Commission decision, the act of ‘unfriending’ a work colleague on Facebook was held to have contributed to a finding of bullying in the workplace. This case highlights the importance of implementing comprehensive anti-bullying and social media policies that address appropriate employee conduct on social media in order to reduce the risk of exposure to bullying claims for employers.
Rachel Roberts, a real estate agent, commenced employment at View Launceston PTY Ltd (View) in November 2012. Between November 2013 and January 2015, Ms. Roberts claimed that two of her colleagues, James Bird , the Principal and Co-director of View, and his wife Lisa Bird, the Sales Administrator, had bullied her at work.
Ms. Roberts filed an application with the Fair Work Commission (FWC) seeking orders to stop bullying, relying on 18 separate alleged instances of unreasonable behaviour towards her.
Ms. Roberts’ allegations against Mrs. Bird included:
- belittling and humiliating her;
- speaking abruptly and ignoring her;
- treating her differently by not acknowledging her in the morning; and
- delivering photocopying or printing to other employees, but not her.
Ms. Roberts also alleged a number of circumstances when Mrs. Bird acted unreasonably towards her, such as:
- belittling her in front of an Australia Post employee by telling her she was not permitted to sign for deliveries;
- taking nine days to process administration work for Ms. Roberts’ property listings when it should have taken less than one day; and
- damaging Mrs. Roberts’ reputation by providing the details of one of her clients to a collection service, even though he had previously agreed to hold off on the collection until the clients property was sold.
A major incident occurred, however, when Ms. Roberts called Mr. Bird at home and asked why none of her properties were displayed in the window. After Mr. Bird raised this with his wife, Mrs. Bird called Ms,. Roberts into a meeting the next day and accused Ms. Roberts of undermining her authority, likening her to a “naughty little school girl running to the teacher” and blocking the door when Ms. Roberts tried to leave.
Ms. Roberts left the office in a distressed state and, upon checking Facebook on her phone in her car only a few minutes after the incident to see whether Mrs. Bird had commented on it, Ms. Roberts found that Mrs. Bird had deleted her as a friend on Facebook.
Ms. Roberts claimed that the alleged bullying behaviour she experienced at work caused her to suffer from depression and anxiety resulting in her being prescribed mediation and requiring psychological treatment.
At the time of the alleged bullying behaviour, View did not have an anti-bullying policy in place. However, a policy and reference manual was produced after Ms. Roberts made her application to the FWC.
The FWC found that Ms. Roberts was subjected to, on eight occasions, unreasonable behaviour from Mrs. Bird, which constituted the repeated behaviour of bullying over an extended period of time. It also accepted the evidence of her diagnosis of depression and anxiety, that she was on medication and receiving psychological treatment, and that the bullying behaviour posed a risk to her health and safety.
As Mr. Bird behaved unreasonably toward Ms. Roberts on only one occasion, the FWC held that his behaviour was not “repeated” behaviour so did constitute bullying.
In relation to Mrs. Bird’s act of “unfriending” Ms. Roberts on Facebook, the FWC held this indicated “a lack of emotional maturity and is indicative of unreasonable behaviour.” The FWC considered that this conduct, alongside the “school girl” comment by Mrs. Bird, evidenced inappropriate dealing with Ms. Roberts that was “provocative and disobliging.” Further, the FWC concluded that Mrs. Bird’s decision to “unfriend” Ms. Roberts on Facebook was made with the intention to “draw a line under the relationship as she did not like Ms. Roberts and would prefer not to have to deal with her.”
Accordingly, the act of “unfriending’ a work colleague on social media was considered “unreasonable” behaviours, which meant that this act, combined with the repeated instances of unreasonable conduct by Mrs. Bird towards Ms. Roberts in the workplace, justified the making of an order to stop the bullying.
Although View had implemented an anti-bullying policy after Ms. Roberts applied for the order, the FWC disagreed that this prevented the risk of bullying continuing in the future. Because Mrs. Bird and View did not consider that any of the behaviour complained of, including the “unfriending” of Ms. Roberts on Facebook, constituted bullying, the FWC determined there was a continuing risk to Ms. Roberts as it considered there to be a lack of understanding as to the nature of the behaviour displayed at work and there was a chance that this behaviour would be repeated in the future.
The impact of social media in redefining workplace bullying:
Since the introduction of the national workplace anti-bullying laws in January 2014 under the Fair Work Act 2009 (Cth) (FW Act), there has been much debate over what conduct constitutes bullying. This discussion becomes much more complex where social media plays a role and blues the boundaries between the workplace and an employee’s private life.
In this case, the act of “unfriending” contributed to the unreasonable nature of Mrs. Birds’ conduct, however, a singular act of ‘unfriending” or blocking a colleague on Facebook or another social media platform is unlikely to constitute bullying. While much conduct that occurs on social media can be considered unreasonable, such as excluding, harassing, or embarrassing others on Facebook, it seems that there must be, as in this case, additional circumstances relating to the workplace to support a finding that an employee has experienced workplace bullying.
It is clear that social media is challenging the idea that the workplace can be defined physically, which increases the difficulties faced by employees in preventing and managing workplace bullying.
This connecting between the use of social media and when an employee is “at work” was explored in the recent FWC decision of Bowker v DP World Limited. In this case, a number of employees posted a series of Facebook comments that made insulting allegations about, and comparisons between, work colleagues.
The FWC stated that there is no requirement for the person (the “bully”) to be “at work” when comments on Facebook are posted, as the behaviour continues for as long as the posts remain on Facebook. What is important is the time these comments are accessed by the employee to which they are targeted, who must access the post at a time considered to be “at work”.
In this regard, the FWC held that the employees’ behaviour amounted to bullying stating that for bullying conduct to occur “at work”, the conduct does not have to occur in the physical workplace.
Instead, it may occur while the worker is performing work, wherever that may be, or when engaged in other activities authorised or permitted by the employer, which as taking a meal break. While the FWC acknowledged that this interpretation of “at work” may give rise to some arbitrary results, the effect of this decision means that social media communications, made at any time or location, have the potential to give rise to a claim of bullying.
As such, employees’ out of work conduct, particularly on social media, may have a significant effect on the employment relationship and be a legitimate concern for employers. While the decision to “friend” or “unfriend” colleagues may seem personal and nothing to do with work, these actions can sometimes lead to serious consequences and may constitute evidence of hostile or aggressive behaviour or a broader pattern of bullying behaviour.
Bottom line for employers
- Employers should implement comprehensive anti-bullying and use of social media policies to address personal social media activities that could affect the employment relationship.
- An anti-bullying policy that is introduced after bullying conduct has occurred is too late. The FW Act compels employers to be proactive when addressing workplace bullying, and the implementation of a policy will assist in ensuring that employees are aware of the appropriate conduct.
- Employers should ensure that employees and managers are aware of and understand applicable policies, and that compliance is monitored.
- If a dispute arises, or seems likely to arise within the workplace, employers should encourage employees to stop and think before taking any action on social media, and remind employees that what is said and done on social media is not private.
Amie Frydenberg – Senior Associate, Lander & Rogers
Kate Wilkinson – Lawyer, Lander & Rogers
- Mrs Rachel 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
- Sharon Bowker, Annette Combe and Stephen Zwarts v DP World Melbourne Limited T/A Dp World; Maritime Union of Australia, The Victorian Brand and Others  FWC 7312.
This article was originally published in the Autumn 2016 | Workplace Relations & Safety Bulletin by Lander & Rogers, and republished with permission.
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