29 September 2015
A recent decision of the Fair Work Commission (“Commission”) has provided further guidance on what constitutes “bullying” under the new anti-bullying jurisdiction and sparked further debate about the interplay of online etiquette, workplace relationships and the law.
In Roberts v VIEW Launceston Pty Ltd  FWC 6556, the Commission found that a director of the employer “unfriending” the applicant on Facebook formed part of a pattern of behaviour that amounted to bullying in the workplace, and which also included:
- belittling and humiliating the applicant in front of third parties;
- deliberately delaying performing administration work relevant to the applicant’s performance of her duties;
- damaging the applicant’s reputation with one client;
- ignoring the applicant and treating her differently to other employees; and
- inappropriate comments about a possible same sex relationship which caused embarrassment to the applicant.
A copy of the decision can be found here.
In addition to providing further guidance on what is, and what is not, bullying, this decision provides another salient reminder for employers to ensure that their policies, and the training in relation to those policies, reflect the most recent developments in the law, and to reinforce with employees the potential consequences of their behaviour online for their employment.
This decision also highlights that just having a bullying policy in place will not be enough to prevent the Commission from making orders that bullying be stopped, and that employers need to not only demonstrate understanding of the behaviours that the policies are directed to preventing, but also act consistently with those policies.
The employer implemented a bullying policy after the incidents occurred and relied upon this to argue that there was no risk of bullying occurring in the future. However, the Commission found that the employer did not consider that any of the behaviour complained of constituted bullying, and therefore there was still a risk that the employee would continue to be bullied.
Whether or not “unfriending” another person on Facebook is the type of unreasonable behaviour that amounts to bullying in the workplace will depend on the circumstances of the matter – noting that there is a requirement for unreasonable behaviour to be repeated before the Commission can find that a worker has been bullied in the workplace, and make an order that the bullying stop.
PCS works with its clients closely to ensure that their behaviour and culture policies, including their bullying policies, are appropriate and reflect current best practice. PCS also provides training to ensure that employers and employees alike are aware of their rights and obligations under those policies.