Bullying round the clock: how out-of-hours social media activity can be a risk for employers

A recent Fair Work Commission Full Bench decision has further clarified when out-of-hours social media activity can constitute workplace bullying. Both port operator DP World and the Maritime Union of Australia (MUA) sought to have allegations excluded from an anti-bullying application on the basis that the conduct didn’t occur ‘at work’.

The case has centred on allegations about Facebook posts from DP World staff and MUA officials that included “various unreasonable and insulting allegations and comparisons” of two of the three workers seeking the anti-bullying orders.

Alleged incidents include:

• That an official of the MUA has failed to advise members of the union on site that certain allegations against one of the applicants is wrong and has taken no action to prevent two of the applicants being called a “lagger” and being ostracised in the workplace;
• That various Facebook posts have been made by employees of DP World who are members of the MUA, and by MUA officials, making various unreasonable and insulting allegations and comparisons of two of the applicants;
• That during the course of a union meeting (conducted in facilities made available to the MUA on the Melbourne waterfront) it was suggested by an MUA official that one of the applicants had acted wrongly and should now be ostracised from the group;
• That an official of the MUA during the course of a conversation with one of the applicants indicated in effect that he was unwilling or unable to protect them from harm or bullying conduct;
• That an employee of DP World and a delegate of the MUA excluded two of the applicants from union activities and events that were relevant to them as female members of the union;
• That an official of the MUA failed to provide representation and advice to two of the applicants;
• That an employee of DP World and a member of the MUA, in a phone call to another DP World employee, had described one of the applicants as a “scab”;
• That employees of DP World and members of the MUA made various threats to one or more of the applicants and encouraged other members not to associate with them; and
• That an official of the MUA in a telephone call to an applicant questioned why they had reported to management the existence of some graffiti, which was placed in the canteen and apparently directed to two of the applicants.

The FWC Full Bench, however, rejected appeals by both DP World and the MUA, finding that the legislative definition of ‘at work’ encompasses “both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer…”

While this interpretation had been set by previous precedents and decisions, the Full Bench focused on the true meaning of ‘at work’, advising that “being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day.”

“The focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour,” said the Full Bench. “The relevant behaviour is not limited to the point in time when the comments are first posted on Facebook. The behaviour continues for as long as the comments remain on Facebook. “It follows that the worker need not be ‘at work’ at the time the comments are posted, it would suffice if they accessed the comments later while ‘at work’.”

iHR believes creating a constructive, safe and lawful workplace culture will reduce the risk of psychological injury to employees. This includes engaging workplace culture experts such as iHR early in the peace rather than waiting for a formal bullying complaint to progress to an external body such as the FWC.

iHR specialise in anti-bullying and harassment training and can also provide your business with tailored Human Resources policies and procedures that will guide managers and staff in adopting appropriate behavioural standards.