Whilst technology and social media have unquestionably provided many benefits to the modern workplace and opportunities for businesses to reach a wider audience, they have also presented dilemmas for HR managers and business owners when dealing with interactions between employees. With the increased use of the internet and social media, and the fact that almost everyone in the workplace now owns a smart phone and can access Facebook, Instagram and similar social media platforms 24/7, problems that used to be left at work when the day ended and everyone went home now follow people home after work hours, which can present huge challenges for employees and managers alike.

With 66% of the Australian population now on Facebook, 20% on Instagram and 17% on Snapchati, social media has become a huge part of many people's lives. The impact that social media bullying has on children and teenagers has been well publicised, with many schools now introducing programs to educate students about cyber safety. However, the impact that social media and in particular, social media bullying has on workplaces has received far less attention.

In the last few years, social media has played a much larger role in bullying claims, unfair dismissal applications and workers compensation claims, with it now not being unusual for screenshots of social media conversations, statuses and comments to make their way to tribunals and Courts in support of employee's claims.

Whilst many businesses are now taking steps to address bullying and harassment in the workplace, businesses should also be putting steps in place to address employee's use of social media in and away from the workplace and implementing processes for employees to report anti social behaviour that they may be subjected to from other employees when using social media.

4 steps for employers to manage social media bullying

Social media and cyber bullying is often unfamiliar territory for many employers, however, there are steps that can be taken to minimise legal risk and ensure that the workplace is a safe environment for all employees.

  1. Implement workplace policies

The best action that employers can take is to develop bullying, cyber bullying and social media policies. A policy relating to bullying should include a definition and examples of both bullying and cyber bullying as well as what behaviour is appropriate and acceptable and what behaviour is not. The bullying and cyber bullying policy should make clear the consequences for failing to comply with it, such as warnings, suspension or termination.

Employers should emphasise that the conduct does not need to occur specifically at work. The Fair Work Commission has recognised that technology and social media has blurred the line between what is "at work" and what is not.

In Bowker & Others v DP World Melbourne Limited [2014] FWCFB 9227, the Commission held that the traditional meaning of "at work" may not necessarily apply to a cyber bully as comments made on social media (in this case, Facebook) only need to be accessed whilst the employee is "at work" to enable the employee to make an application for a stop bullying order under the Fair Work Act. This means that as long as the comments remain on social media and the employee is able to access those comments whilst they are at work, the employee will have the ability to make a bullying complaint to the Commission.

For this reason, workplace policies that are implemented must adequately address the fact that they will continue to apply even outside working hours and that employee's will be expected to comply with the policy, otherwise disciplinary action may be taken against them.

When it comes to social media and the workplace, it is not just words that may be considered cyber bullying, but also a person's actions. In Rachael Roberts v VIEW Launceston Pty Ltd [2015] FWC 6556, it was held that "unfriending" a colleague on Facebook could be considered to form part of bullying conduct. However, "unfriending" on its own is unlikely to constitute bullying, as in this case, it was the combination of other conduct that led to the Commission finding that the employee had been bullied.

  1. Develop a reporting and investigation process

Each workplace should develop a thorough reporting process and investigation process which is usually set out in a grievance policy. Because of the nature of cyber bullying, and the potential for it to occur outside of working hours, often the only way that employers become aware of any issues is if the employee tells them.

It is important to ensure that employees feel comfortable reporting issues to their supervisors and/or managers and that they are encouraged to do so. This means that supervisors and managers must deal with a complaint appropriately by listening, asking questions and showing empathy.

Having a policy that allows complaints to be made is vital to avoiding a bullying application being made by an employee. The Fair Work Commission expects that prior to making an application, the employee has exhausted avenues available to them to have the complaint remedied by their employer. If a business does not have a grievance policy in place, this can open the door to an employee making an application directly to the Commission without first providing the business with the opportunity to address the issue directly.

  1. Train managers and staff

Employers have a legal obligation to provide a safe workplace for their employees. This includes training and educating their employees regarding bullying and cyber bullying and what is and isn't acceptable behaviour in the workplace.

If a business fails to train its staff on what is and isn't acceptable, and an employee subsequently bullies another staff member, a business can be held liable for the employee's actions. For this reason, it is vital that all staff are given training on appropriate behaviour in the workplace and how to deal with bullying and cyber bullying in the workplace. This will also assist in countering any claim that the employer is vicariously liable for an employee's actions as it demonstrates that the behaviour was not condoned by the business and the business took reasonable steps to train staff about expected behaviour.

  1. Don't ignore the issue

If a business does become aware that there is an issue between staff members or that comments or posts have been made on social media that are inappropriate, the business has an obligation to take immediate steps to address the issue.

Despite there being a tendency to want to ignore issues that crop up on social media given they can be tricky to handle, usually apply to out of work conduct and can sometimes involve petty disputes, if a business is on notice that there is something wrong and does nothing about it, there is a very strong possibility that the employer could be liable for any damage that is caused to the bullied employee's health, if a claim were to be brought by them.



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.