Our News

'Social Media More Prevalent In Bullying Cases' - The Australian Financial Review

By Alan J. McDonald

Legal Fight Over Thorburn’s Exit

McDonald Murholme’s Managing Director Alan McDonald discusses the Fair Work Commission’s recent ruling that unfriending a colleague on Facebook could constitute bullying in the workplace with The Australian Financial Review. The article explores the value of protecting employees’ rights from online bullying behaviour.  See below article for further details.

Social media more prevalent in bullying cases – The Australian Financial Review

Employment lawyers say a Fair Work Commission ruling that unfriending a colleague on Facebook could constitute bullying is a salient reminder for companies to ensure they and their workers understand what is and is not appropriate online behaviour.

Clayton Utz partner Anna Casellas said social media increasingly featured in bullying and dismissal cases in the past three years.

This most recent case showed employers could be doing more to ensure employees understood their obligations when it came to their private social media accounts, aside from merely having grievance, workplace bullying and social media policies in place.

Ms Casellas said there was a clear line of cases that demonstrated tribunals and courts would consider conduct on social media as relevant in unfair dismissal or bullying cases, even though it could take place outside the workplace and work hours.

“If people make comments on social media, say Twitter, and that can damage the employer’s reputation, the employer can take action against an employee, notwithstanding it may be a private Twitter account,” Ms Casellas said.

The Commission found on September 23 a Tasmanian real estate agent was bullied by her employer who unfriended her and did not saying good morning.

Ms Casellas said the employer engaged in a range of other conduct that as a whole was found to be wrongful and the case was no precedent for finding that unfriending of itself was bullying.

The employee was receiving medical treatment and the employer’s conduct was found to pose a risk to the employee’s health and safety. The parties are now negotiating over what sort of anti-bullying order should be made.

People + Culture Associate Director Alison Spivey the decision highlighted the breadth of the behaviours that may be considered “bullying at work”.

“Unfriending the employee on Facebook was among a number of behaviours that were considered, collectively, to be bullying in this matter,” Ms Spivey said. “However, every case is different and may not yield the same result”.

“The employer argued the behaviour did not constitute bullying and relied on the implementation of a bullying policy post the incidents as part of its argument that there was no risk that the bullying would continue.

“But this was not enough because the Commission took the view that the employer’s position reflected a lacked understanding of what bullying was and therefore there was a risk it could continue.”

The Fair Work Commission was assigned responsibility for determining bullying matters when the new anti-bullying jurisdiction commenced in January last year. It can make orders to “stop bullying at work” but it cannot award compensation.

Ms Casellas said there had not been as many claims or decisions as was foreseen predominantly because employees were likely to be reluctant to make claims against a current employer.

Ms Spivey said it was difficult to assess how effectively this new jurisdiction was operating because many matters are resolved through confidential processes such as mediation and the longer term effect of the Commission’s orders may ultimately only be understood through the anecdotal feedback of the parties.

Managing director of employment law firm McDonald Murholme, Alan McDonald said it was still early days to reflect on the regime’s effectiveness but the decision showed there were benefits to the employee who gained a resolution and to the employer by way of a new policy and better working environment.

He said the Productivity Commission’s inquiry into Fair Work laws needed to ensure the value of protecting employee’s rights was appreciated and maintained.

“Prime Minister Turnbull wants to improve Australia’s business capacity and there is no better way of doing this than upholding standards of respect and good governance in the workplace,” Mr McDonald said.

Reference: ‘Social media prevalent in bullying cases’, The Australian Financial Review,  25th September 2015