November 26, 2015
We receive a lot of calls from clients about issues surrounding the use of social media by their employees. It seems like a minefield of risk for employers, with a number of high profile cases this year causing even more confusion about what constitutes bullying via social media and what constitutes ‘the workplace’.
We have taken a look at a couple of these cases to help clarify what the current position is and what employers can do to minimise the employment risks relating to social media.
To be clear, a worker is bullied at work if a person (or group of people) repeatedly acts unreasonably towards them or a group of workers, and the behaviour creates a risk to health and safety. The point in question in these cases relate to whether the alleged activities have in fact occurred ‘at work’ and whether ‘unfriending’ someone on social media can constitute bullying.
In Bowker, Coombe, Zwarts v DP World Melbourne Limited, three employees of DP World brought an anti-bullying application against their employer, DP World. One of their complaints centred around Facebook posts from another employee that included “various unreasonable and insulting allegations and comparisons” of the employees making the application. DP World argued that these posts were made outside of work hours and away from the workplace and therefore could not be bullying ‘at work’.
The Fair Work Commission (FWC) disagreed, finding ‘at work’ could encompass “both the performance of work (at any time or location) and when the worker is engaged in some other activity, which is authorised or permitted by their employer (such as being on a meal break or accessing social media while performing work)”.
The fact the posts were made outside of work hours was also irrelevant, as the behaviour was not limited to the time when the comments were first posted, but actually continued for as long as the comments remain on Facebook. Therefore, it was sufficient that the employee who the comments were directed at accessed them while ‘at work’.
This decision means employers potentially need to try and regulate the behaviour of their employees in relation to their colleagues, even outside of the work environment.
The recent case of Mrs RR v VIEW Launceston has caused significant controversy, after the FWC indicated that unfriending on facebook was a relevant factor in a finding of bullying. Following this case, employers have argued that they cannot reasonably be expected to force employees to be friends on facebook or police their activities if they choose to do so.
However, although unfriending could be a form of social exclusion, this alone would not amount to bullying as bullying requires repeated unreasonable action, creating a risk to health and safety. Therefore, the FWC would consider all the circumstances in a case, including the reason for the unfriending. For example, this could have been done maliciously as part of an ongoing course of behaviour, or simply because the employee had decided to reduce their facebook friends and remove all work colleagues.
In this case, the employee had endured about 18 months of hostile conduct from her manager (including speaking aggressively to her, embarrassing and ostracising). After abusing the employee face to face, her manager ‘unfriended’ her. This was the final straw for the employee, who was then certified unfit for work and lodged her anti-bullying claim. The FWC found that bullying had occurred in this case, based on the continued, repeated actions of the manager.
Although the employer had an anti-bullying policy in place, this could not be relied upon as a defence because it was not being enforced.
These cases demonstrate the need to continually monitor policies such as anti-bullying and social media to check how they are affected by new developments in legislation and case law, and the need to update them as required.
Below are our top tips for minimising the risks of social media in the workplace.
Have a clear policy on the use of social media and the internet at work. Where not related to an employee’s role, you could also consider blocking access to
social media sites on work computers and prohibit comments about matters relating to the employer or its customers on the internet.
Employers should also have and enforce policies around appropriate conduct in relation to work colleagues at all times, as conduct on social media, during breaks or even outside of work may still amount to bullying.
Have a policy which defines what behaviour may constitute bullying and harassment, and the consequences of such behaviour. It should also explain the process for raising any complaints and the investigation process which will be followed.
If you received a complaint from an employee, take it seriously. Employers have an obligation to investigate reported cases of bullying. Careful consideration needs to be given to whether the events actually occurred ‘at work’, which will require careful consideration of where the events took place, when the events took place, and who was involved in the events.
Ensure all staff are trained on the policies and that managers know their responsibilities to enforce them. As the case of the real estate employee above shows, if your policies are not enforced and your staff are not aware of them, they not worth the paper they are written on.
If you need assistance in reviewing or developing policies around anti-bullying, social media or conduct, please call Employsure today on 1300 651 415.
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