Cyberbullying and the Use of Social Media

Bullying in the workplace. What protections are there for employees under the Fair Work Act? Are employers liable where there is cyberbullying by other workers? What can employers do to manage these workplace behaviours?

Bullying at work has become more topical recently.

In 2013 the Federal Government passed amendments to the Fair Work Act that introduced anti-bullying measures.

These enable workers to apply to the Fair Work Commissioner for a stop bullying order if they reasonably believe they have been bullied.  A worker will be bullied at work if an individual or a group of individuals, repeatedly behaves in an unreasonable way towards a worker, and the behaviour creates a risk to health and safety.  If a stop bullying order is granted but is subsequently contravened, the employer will then be potentially exposed to the civil penalty provisions under the Act. Penalties can vary.

The anti-bullying measures were designed to work in conjunction with workplace health and safety legislation, the employer’s non-delegable duty of care at common law to provide a safe system of work, workplace policies and procedures and criminal law.

Even though the Productivity Commission estimated in the year 2000 the Australian economy lost approximately $36 billion because of bullying (a figure that has no doubt increased since then), the problem with workplace health and safety laws and criminal law is that they are invariably applied in the most serious of case, and usually after the damage is already done).

There has also been some criticism of the anti-bullying provisions in the Act with respect to their effectiveness.  Even though the anti-bullying provisions do not provide employees with a right to compensation unless the general protections are also breached, it is nevertheless a framework that can be commenced and initiated by employees themselves.

The changing nature of work in the information age is also making the management of these and other workplace behaviours challenging.  Modern technology has contributed to a blurring of the public/private distinction at work through:

• the use of social media for work activities;
• the use of private social media accounts during work hours or in the workplace; and
• the use of personal social media, email accounts and other electronic devices to perform work outside the workplace either during work hours or outside of work hours.

Regrettably, it is not uncommon for employees to be bullied or harassed online by other workers both at work and outside of work, or for them to be oblivious as to the source of the harassment because of the anonymity of some of the perpetrators. Nor is it uncommon for employers to suffer reputational damage, and in some cases intellectual property infringements, because of an employee’s online conduct regardless of when and where it occurs.

From an employer’s perspective, this has significant implications not only because they are obliged to provide a safe system of work, but also because they can be found vicariously liable for cyberbullying and other misconduct outside the workplace where:

• there is an obvious connection between the conduct and their employment;
• the conduct is so serious, it repudiates the employment contract (thereby justifying the need for intervention);
• the conduct is so serious it irreparably damages the relationship of trust and confidence between the employer and the employee; or
• the conduct creates a serious and imminent risk to health the health and safety of workers (thereby triggering the employee being exposed to serious misconduct which is a ground for summary dismissal).

The application of these principles to social media that is used outside the workplace outside of work hours is difficult.  Much of the time, there will not be a sufficient connection between the conduct involved and the workplace, given that the employer power to intervene is somewhat confined to matters that affect it affects business reputation or workplace productivity.

Furthermore, cyberbullying is often covert.  It frequently involves anonymous perpetrators and other keyboard warriors who may or may not be co-workers.  With the overlap with criminal law and workplace health and safety legislation – each of which are each administered by different government departments, these issues can sometimes get lost in the minutia of whose responsible for what?

From a contractual perspective, lawyers have been attempting to bridge the gap to help in the provision of a safe system of work by:

• attempting to define when an employee is and is not at work, or alternatively when the employer can and cannot intervene in certain forms of personal conduct;
• developing employment conditions that require employees to comply with all laws, workplace policies, social media policies, privacy policies and code of conduct for work-related activities, and when the circumstances warrant it, personal activities; or
• if employment policies are not incorporated into employment contracts (as is often the case with good reason), by relying on those policies to discipline employees.

Carefully crafted employment policies are important.  However, they can be difficult to rely on as a reason for disciplines when the policies themselves are not readily available, limited education and training is given in relation to them, or the breach is of a kind that is minor or trivial.

Any legal advice and protections must therefore be accompanied by effective management strategies that are designed to prevent risks from occurring.

More Information

• Employment Law
• Litigation & Dispute Resolution