Australia: Abuse from the general public: The obligations of employers

Last Updated: 30 August 2018
Article by Michael Byrnes

Recently a radio presenter on ABC radio in Adelaide broke down in tears on air after receiving an abusive text message from a listener which had been sent through the station's text feedback number.

The text criticised the presenter stating that she had she had conducted "a pitiful interview", claimed what she said was "awful", that she had "embarrassed the interviewee" and had "provided excruciating listening".

In reacting to the feedback elicited on the public broadcaster's text line (of which this text was just one example of the critical messages received) the presenter said:
"We don't always get things right here, but we do always try our best. We sit here with a text line in front of us, and it just adds up."

The presenter has since received substantial support from her co-host, media colleagues and the general public.

In response the Managing Director of the ABC said:
"Personal abuse, threats and harassment, are not acceptable. Under any circumstances."

She added:
"We are also looking internally and externally at additional measures to protect our people. This includes peer support and safe engagement with our audiences."

This incident once again raises the vexed question of how to balance channels for feedback from the general public (whether they be through a mechanism established by the employer directly or accounts on social media platforms) with the duties owed by employers to protect the health and safety of staff.

THE INTERNATIONAL EXPERIENCE

Some guidance on this issue can be taken from a labour arbitration ruling in Ontario, Canada which ruled the Toronto Transit Commission (TTC) had failed to take all reasonable and practicable measures to protect its employees from abuse and harassment received through a Twitter account @TTChelps, which the TTC specifically established to directly interact with the public.

Some of the epithets that had been directed by the public to @TTChelps about TTC employees included (and these examples are at the milder end of the abuse in question) "morons", "pricks", "rudest people on the planet", "insane" and "grumpy bastard ". Sometimes these terms of abuse were accompanied by photographs of staff members to whom the abuse was being directed.

The union argued that TTC breached its obligations to employees by not adequately protecting them from harassment by, inter alia, failing to effectively manage or sanction those who engaged in abuse.

The Arbitrator essentially agreed with that submission and held:
"To deter people from sending such tweets, @TTChelps should not only indicate that the TTC does not condone abusive, profane, derogatory or offensive comments, but should go on to request the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. If that response does not result in an offensive tweet being deleted forthwith, @TTChelps should proceed to block the tweeter. It may also be appropriate to seek the assistance of Twitter in having offensive tweets deleted. If Twitter is unwilling to provide such assistance, this may be a relevant factor for consideration in determining whether the TTC should continue to be permitted to use @TTChelps."

THE AUSTRALIAN POSITION

Employers of staff subject to feedback or commentary from the general public should reflect upon their legal obligations to protect the health and safety of those employees. Two sources of such obligations are the Work Health and Safety Act 2011 (NSW) (WHS Act) and the Fair Work Act 2009 (Cth) (Fair Work Act).

The WHS Act relevantly requires employers:

  1. to eliminate risks to health and safety, so far as is reasonably practicable, and
  2. if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

As the recent ABC radio incident publicly demonstrated, malicious, ad hominem abuse which is seen by the employee to whom the vitriol is directed can pose a risk to the health and safety of that employee (particularly if it occurs frequently). There is also a risk to those whose duties include operating the feedback mechanisms such as social media accounts; while the abuse may not be about them they may be frequently exposed to it potentially creating a harmful situation for them as well.
The anti-bullying provisions under the Fair Work Act can also apply to circumstances of this kind.

Under the Fair Work Act, a worker is bullied if, while at work, an individual, or group of individuals, repeatedly behaves unreasonably towards that worker, and that behaviour creates a risk to the worker's health and safety.

While anti-bullying matters almost invariably deal with colleagues, a customer can be a "bully" for the purpose of the Act. This was the case in the Full Bench Fair Work Commission decision of Bowker & Ors v DP World MUA & Ors [2014] FWCFB 9227, which related to conduct over social media, in which it was held:
"The individuals engaging in the unreasonable behaviour need not be workers, for example they could be customers of the business or undertaking in which the applicant works."

This decision opens up the possibility that an employee abused by a member of the public could bring anti-bullying proceedings in the Fair Work Commission, seeking orders (against both that person and the employer) to prevent the bullying conduct from continuing.

ACTION FOR EMPLOYERS

This can be a problematic issue for employers. On the one hand, robust feedback from the general public is often rightly considered to be essential to the successful functioning of an organisation. On the other hand, when that feedback lacks basic civility and constitutes an unjustified personal attack on a specific employee rather than an appropriate critique of the product or service being provided then, it can become a health and safety issue.

Employers need to turn their mind to the feedback mechanisms they have in place and how to strike a balance between these two potentially competing considerations. The old adage "the customer is always right" (or its variation, "the customer is king") can reflect a mentality that tacitly condones abuse to appease customers at the expense of the welfare of employees.

Some steps employers should consider adopting:

  • Moderation or filtering of feedback to insulate employees from abusive messages directed towards them.
  • Establishing and enforcing rules of engagement on feedback mechanisms or platforms so that ad hominem attacks will not be countenanced and those who engage in it will be restricted or blocked from accessing the mechanism or platform.
  • Providing training and support for those employees in roles or positions that could leave them open to personal abuse.
  • Establishing protocols for dealing with such abuse, including de-escalation strategies.

For further information please contact:

Michael Byrnes, Partner
PHONE: +61 2 9233 5544
EMAIL: MJB@SWAAB.COM.AU

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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