THINGS YOU NEED TO KNOW
- A worker ‘defriending’ another worker on Facebook does not necessarily amount to bullying.
WHAT YOU NEED TO DO
- You should review your workplace bullying policy to ensure it is up-to-date and includes a workplace investigation procedure that provides procedural fairness.
Employers need not be alarmed in the wake of reports that the Fair Work Commission ruled ‘defriending’ a colleague on Facebook amounted to bullying at work.
A worker who reasonably believes they have been bullied at work can apply to the Fair Work Commission (Commission) for a stop bullying order.
In a recent application for an order to stop bullying, the Commission found that a Sales Administrator at a Tasmanian real estate agency had bullied her co-worker over an extended period. In her application, the agent made 18 allegations of unreasonable behaviour by her colleagues which she claimed constituted bullying at work.
Importantly, the agency did not have a workplace bullying policy in place at the time of the alleged bullying behaviour.
In its decision, the Commission found that only nine of the 18 allegations were substantiated. These nine allegations included instances where the Sales Administrator had:
- deliberately delayed performing administration work for the agent
- behaved unreasonably towards the agent, including speaking abruptly toward the agent, in particular, when replying to the agent’s verbal offer to answer the telephone
- acted unreasonably to damage the reputation of the agent with one of the agent’s clients
- continually failed to acknowledge the agent in the morning and ignored the agent in the office
- generally treated the agent differently to other employees
- made inappropriate comments to the agent about a possible same-sex relationship, which caused her embarrassment, and
- belittled, humiliated and had been aggressive toward the agent and made unreasonable comments to her.
Effect of Facebook 'defriending'
One of the allegations involved a series of events following a complaint made by the agent about the Sales Administrator not giving the agent a fair representation of the agent’s properties in the front window of the premises.
The agent alleged that the morning after making that complaint, the Sales Administrator aggressively accused her of being disrespectful and undermining the Sales Administrator’s authority. In particular, the agent alleged that the Sales Administrator called her a ‘naughty little school girl running to the teacher’. Immediately following this incident, the Sales Administrator ‘defriended’ the Agent on Facebook.
The Commission said the Sales Administrator’s behaviour ‘evinces a lack of emotional maturity and is indicative of unreasonable behaviour’ and the ‘school girl’ comment was evidence of the Sales Administrator’s inappropriate dealing with the agent. The Commission also took the view that the Sales Administrator ‘took the first opportunity to draw a line under the relationship with (the agent), when she removed her as a friend on Facebook because she did not like (the agent) and would prefer not to have to deal with her’.
Outcome of decision
Whilst recent media reports and commentary about this case have raised concerns that ‘defriending’ a co-worker on Facebook will of itself amount to bullying, employers should rest assured this is not the case.
In this case there was a long list of allegations made against the individual, nine of which were substantiated. Cumulatively, these were found to constitute bullying at work. Importantly, there was no one-off instance of unreasonable behaviour which amounted to bullying, including the ‘defriending’ of the agent on Facebook. Instead, it was the course of conduct in its totality which amounted to bullying against the agent.
However, as can be seen from this case, ‘defriending’ a co-worker on Facebook can still result in a strong message that a relationship between workers has become untenable, at least in the view of the worker who has ‘defriended’ their co-worker.
Key lessons for employers
Importantly, the Commission indicated that a lack of understanding as to the nature of the behaviour displayed at work generally has the tendency to see the behaviour repeated in the future. As a result, there was a risk of the agent being bullied at work again in the future.
This case serves as a timely reminder that employers need to have sound workplace bullying policies implemented in the workplace and ensure they are appropriately implemented and regularly reviewed.
Even if you do have a workplace bullying policy in place, it should be checked to make sure it is up-to-date under current laws and today’s connected social media environment, as well as including an appropriate investigation procedure that provides procedural fairness to complainants. It is also important to ensure staff are appropriately trained in policies.
The absence of sound workplace bullying policies and failure to properly implement them can mean that employers run the risk of workers failing to understanding the nature and impact of their behaviour, making it much more difficult for an employer to stop the offending behaviour.
Although there are no financial penalties available in the bullying jurisdiction, appearing before the Commission to deal with such an application is time-consuming. Further, lodging a ‘stop bullying’ claim does not preclude an aggrieved worker from taking other legal action. Employers could find themselves facing a variety of claims arising out of such inappropriate workplace behaviour, such as workers’ compensation, discrimination or harassment. Employers should therefore take care to ensure they have appropriate policies in place and that incidents are managed under the policy.