Can social media posts be considered workplace bullying?
YES – An online post from your personal social media can be grounds for establishing workplace bullying. The following cases highlights the importance of understanding how your private social media posts and activity can affect you at work.
How does a Facebook Post amount to bullying?
Bowker & Ors v DP World Melbourne Limited T/A DP World; MUA and Others  FWCFB 9227
- Allegations were brought (amongst others) that various unreasonable and insulting Facebook posts were made by the respondents about the applicants.
- The applicants in Bowker pursued a Fair Work Commission complaint seeking an order for the bullying to stop.
- Did the posts constitute workplace bullying as defined by section 789FD of the Fair Work Act 2009 (Cth) (“the Act”)?
- What was the Bench’s definition of “bullied at work” and “while the worker is at work”?
The Definition of “At Work”
The Full Bench found that the term “at work” clearly involved instances where the worker was performing work regardless of their location.
Thus, if a person is working from home or in an external meeting they would be considered at work. Similarly, if they were on an authorised lunch break this would be considered “at work” for the purposes of section 789FD even though they were not performing work.
Therefore, they found a useful formulation of “at work” to be:
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, or in the case of a contractor their principal.
When applied to social media bullying, “at work” would include instances where the worker is accessing social media while engaged in an activity that is authorised or permitted by the employer. For example, at work would include checking Facebook while on a coffee break or reading a text message while writing a work email.
When will a social media post be considered bullying?
The Full Benches decision made it clear that it is not important when the online comments are made, but the time when the worker making the claim is accessing it.
If the worker has accessed the offending post while performing work or being engaged in an authorised activity by their employer it may be covered by section 789FD, and considered bullying at work. This also means that if a worker views bullying social media posts when they are not “at work” they may not be entitled to a remedy under section 789FD.
Does Unfriending a Colleague amount to bullying?
In 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  FWC 6556, the act of “unfriending” a colleague on social media was taken into consideration when establishing workplace bullying.
Unfriending a colleague was not found to be workplace bullying in and of itself, however, when coupled with other ongoing and unreasonable behavior, was seen as indicative of unreasonable behavior.
In this case, some of the alleged bullying included:
- belittling and humiliating comments in front of others;
- refusing to let the Applicant adjust the air-conditioning temperature;
- requiring the Applicant wear a uniform when other employers weren’t required to do so;
- deliberately delaying performing any administrative tasks for the Applicant;
- directing potential clients away from the Applicant, posing a disadvantage to her;
- not acknowledging the Applicant; and
- eavesdropping on the Applicant’s telephone conversations.
So, when considering the act of unfriending the applicant in these circumstances, you can see how it would be perceived as contributing to the sum total of establishing workplace bullying conduct.
What does this mean for Employers and Employees?
These two cases alone indicate that social media activity can have a bearing on allegations of workplace bullying. Not only can private use of social media be considered grounds for establishing workplace bullying, but it can also apply outside the physical place of work. This means that online posts can be deemed as bullying regardless of when and where the perpetrator makes the post.
Employer As an employer, it is important to address the use of social media in your workplace bullying policy. Social media conduct will continue to be brought into matters of workplace bullying.
Employee As an employee, do not consider your private use of social media as being irrelevant to allegations of bullying conduct in the workplace. Instead, every post you make can be used as evidence to support allegations of workplace bullying. Better yet, do to others what you would have them do to you and exercise caution when posting on social media posts that may cause insult or humiliation.
Need an Anti-Bullying Policy or do you need to review and update your existing policy to include social media implications? We can help.
Should you need assistance with the drafting of anti-bullying policies for your workplace, or if you feel you are being subjected to workplace bullying, please contact one of our client engagement officers today and make an appointment to see one of our Brisbane Employment lawyers.