Australia: Social media and bullying in the workplace: To friend or not to friend, that is the question!

Key Points:

A recent decision of the Fair Work Commission is widely reported to have found that deleting a colleague on Facebook will constitute bullying under federal workplace relations legislation, but is that correct?

The intense media scrutiny surrounding the findings of Deputy President Wells 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 [2015] FWC 6556 (23 September 2015) has heavily focused upon the notion that the mere act of deleting a work colleague on social media will constitute bullying for the purposes of the Fair Work Act 2009 (Cth).

However, to quote the seminal hip hop group Public Enemy, don't believe the hype.

Although bullying was found to have occurred in this instance, the act of "unfriending" or blocking a colleague on Facebook, Instagram, Twitter and other such social media sites is highly unlikely, of itself, to lead to a finding of bullying. There will almost always need to be, as there was in this case, other circumstances which support a finding that an employee has been subjected to bullying in the workplace.

What can an employee do to stop bullying?

An employee who reasonably believes that he or she has been bullied at work can apply to the Fair Work Commission for an order to stop bullying pursuant to sections 789FC and 789FF of the Fair Work Act.

When is an employee bullied at work?

Workplace bullying is defined in section 789FD(1) of the FW Act.

Bullying is constituted by repeated and unreasonable behaviour directed towards an individual worker or a group of workers (who work at a constitutionally-covered business) which gives rise to a risk to health and safety.

The Fair Work Act does not specifically outline the types of behaviours that will constitute bullying, but the behaviour must be unreasonable (including behaviour that is victimising, humiliating, intimidating or threatening) and must also be ongoing and persistent.

Any conduct that is considered reasonable management action, that is carried out in a reasonable manner, will not constitute bullying for the purposes of the Fair Work Act (section 789FD(2)).

The bullying conduct alleged by Ms Roberts

Ms Rachel Roberts was a real estate agent in Tasmania.

In 2010, Ms Roberts commenced employment with View Launceston Pty Ltd, a real estate franchise. In February 2015, Ms Roberts alleged that two of her colleagues, Mr James Bird (the Principal and Co-director of View) and his wife Mrs Lisa Bird (the sales administrator) had bullied her at work. The alleged bullying conduct included:

  • belittling and humiliating Ms Roberts in front of an Australia Post employee by telling her she wasn't permitted to sign for deliveries;
  • refusing to let Ms Roberts adjust the temperature setting on the air conditioning unit;
  • treating Ms Roberts differently by requiring her to wear the full work uniform while other employees were allowed to wear other clothing;
  • taking nine days to process Ms Roberts' paperwork for a property listing when it should have taken less than one day;
  • refusing to let Ms Roberts take her laptop home or bring her personal computer to work;
  • acting in unreasonable manner by directing clients away from Ms Roberts to another employee;
  • refusing to undertake a change to an online listing which Ms Roberts had requested which resulted in the loss of Ms Roberts' property listing;
  • insinuating that Ms Roberts did not "live in a nice area" by referring to a property next door to Ms Roberts' residence in a negative manner;
  • treating Ms Roberts differently by not acknowledging her in the morning and delivering photocopying or printing to other employees but not to Ms Roberts;
  • calling Ms Roberts a "naughty little school girl running to the teacher"; and
  • acting in a hostile and aggressive manner towards Ms Roberts after she confronted Mrs Bird about not getting a fair representation of her property listings displayed in the front window of the premises, following which Mrs Bird deleted Ms Roberts as a friend on Facebook.

Ms Roberts subsequently filed an application with the Fair Work Commission seeking orders to stop bullying. The application alleged that she had suffered 18 separate incidents of bullying in the workplace.

Ms Roberts presented evidence that the unreasonable behaviour she had been exposed to at work had caused her deep anxiety and depression, resulting in the need for her to consult and seek treatment from a psychologist.

At the time of submitting her application, View did not have an anti-bullying policy in place (although a policy and reference manual was implemented following Ms Roberts' application with the Commission).

Unfriending in an unfriendly workplace can be bullying

Deputy President Wells ruled in favour of Ms Roberts, finding that eight of the allegations she had raised had been substantiated.

DP Wells concluded that Ms Roberts had been "subjected to on more than one occasion...behaviour that was unreasonable" and behaviour which "was repeated over an extended period of time".

DP Wells acknowledged that View had taken steps to address the issue by implementing an anti-bullying policy. However, the fact that an anti-bullying policy had been introduced did not sway the Commission's decision. DP Wells held that there was a continuing risk of Ms Roberts being bullied at work as Mrs Bird and View did not consider that any of the behaviour complained of, including the act of deleting Ms Roberts on Facebook, constituted bullying.

In regards to the incident in which Ms Roberts' profile was "unfriended" on Facebook, DP Wells held that such conduct "evinces a lack of emotional maturity and is indicative or unreasonable behaviour". DP Wells examined the circumstances surrounding the relationship between Mrs Bird and Ms Roberts, and concluded that Mrs Bird's decision to "unfriend" Ms Roberts on Facebook was done with the intention of drawing "a line under the relationship as she [Mrs Bird] did not like Ms Roberts and would prefer not to have to deal with her". DP Wells considered the act of "unfriending" a colleague on Facebook in these specific circumstances to be an example of unreasonable behaviour. This act, when combined with other conduct such as calling Ms Roberts "a little school girl" and treating Ms Roberts differently to other employees, justified the making of an order to stop bullying.

How employers should deal with (anti)social media

This case serves as a helpful reminder of the importance of implementing a comprehensive anti-bullying policy in the workplace, and of the need to appropriately address employee conduct on social media in such policies in order to reduce the risk of exposure to bullying claims.

An anti-bullying policy that is introduced after bullying conduct has occurred is too little, too late. The legislation compels employers to take an active approach to this issue, and to use the implementation of a policy as the catalyst for cultural change.

This case also serves as a reminder of the issues associated with the use of social media for the workplace. Although the act of "unfriending" a colleague on Facebook will not automatically amount to bullying, the Commission's findings suggest that employee conduct on social media can be taken into account and may, in certain circumstances, amount to unreasonable conduct.

As the boundaries between work and private life become increasingly blurred, it is imperative that employees strive to maintain a balance between personal and professional use of social media. While it may seem that connecting online with your colleagues is a natural and risk-free proposition, and a decision to friend or unfriend a colleague is an entirely personal prerogative, that is not necessarily the case. As this decision clearly illustrates, the use of Facebook (or other social media) can lead to serious consequences if the relationship turns sour. For some individuals, being "unfriended" or blocked on social media can be viewed as an act of hostility and aggression, akin to refusing to let your colleague sit with you on your lunch break or join you for work drinks. It may even be seen as a litmus test of how an employee is being treated generally by colleagues.

As such, even though the media reports about the FWC purporting to closely regulate personal online connections are a melodramatic overreach, it is still important for employers to be aware of how interaction between colleagues on social media can go wrong. In this regard, it is prudent for employees to address the risk of bullying on social media, in a consistent way, in both bullying and social media policies.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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