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Social Media hits spotlight in key anti-bullying case

A decision of a Full Bench of the Fair Work Commission in the DP World Anti-bullying case has highlighted the need for employers to implement clear policies on the acceptable use of social media sites like Facebook by their employees.

The case concerns allegations of bullying by Maritime Union of Australia (MUA) officials and some employees of DP World. The claims were made by three DP World employees, and much of alleged conduct occurred away from the workplace (e.g. at meetings in the MUA’s offices, MUA posts on Facebook etc).

The Full Bench considered the meaning of the words “while the worker is at work” in the anti-bullying provisions of the Fair Work Act, and the FWC President invited Ai Group to intervene given the importance of the case in determining the boundaries of the Commission’s anti-bullying jurisdiction.

We argued that the Commission’s anti-bullying jurisdiction relates to conduct which occurs while the worker is carrying out work at the employer’s workplace during working hours, or carrying out work for the employer at another location during working hours. Clearly, a tangible and reasonable boundary for the FWC’s anti-bullying jurisdiction is necessary if employers are to avoid being exposed to claims for conduct that occurs outside of work.

The Full Bench decision, handed down on December 19, determined that the FWC’s anti-bullying jurisdiction is limited to circumstances where a worker has been bullied while “at work” and that this will generally be at a time when the worker is performing work for the employer or engaged in some other activity which is authorised or permitted by the employer.

However, with Facebook posts, the Full Bench has decided that for the purposes of the Commission’s jurisdiction to issue anti-bullying orders:

  • there is no requirement that the person who made the posts be at work at the time the comments were posted;
  • posts which constitute bullying behaviour result in the behaviour continuing for the entire time that the posts remain on Facebook; and
  • it is sufficient that the worker who accessed the posts be at work at the time.

This case has further emphasised the need for employers to have policies in place that make it clear that posting inappropriate materials on social media sites about the company, managers or employees is unacceptable. Facebook posts by employees about other employees (including managers, supervisors and others) can constitute bullying in some circumstances.

The message to employers is that, if they are to avoid claims, proactive steps should be taken to prevent such bullying by implementing clear policies about acceptable use of social media.

by Stephen Smith

Steven SmithAi Group’s Director – National Workplace Relations, Stephen Smith is responsible for workplace relations policy development and advocacy. He regularly represents industry’s views to governments, opposition parties and in numerous inquiries. He also regularly represents Ai Group and its members in major FWC cases including Annual Wage Reviews, Award Reviews, appeals and test cases. He is a practising solicitor for and Chairman of the Board of Ai Group Workplace Lawyers, a national law firm operated by Ai Group.

Published - 22/12/14

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