The blurred line between work and private life is probably at its greatest when involving social media. For behaviour to be considered workplace bullying there needs to be a connection between the workplace and the cyber-bullying.
The general Work Health & Safety obligation to take reasonable steps to prevent injury and to provide a safe workplace mean that if there is a connection with work and the employer was aware of it or should have reasonably anticipated it then they may be found to be vicariously liable. That does not mean that the employer is meant to have a crystal ball but that it was reasonable that they should have been aware of the potential risk.
A 2010 article published by Workplace Info discussed the issue of cyber-bullying and Sydney based lawyer, Faye Calderone noted:
As social media continues to blur the lines between work and private life, what constitutes work activities as opposed to out-of-hours conduct becomes more difficult to decipher. In the case of Lee v Smith  FMCA 59, Lee was raped by Smith, after a function that was held to be connected to Lee’s employment, because the dinner party would not have occurred if not for the connection to the employment, and due to the treatment by other employees of Lee after the investigation which resulted in the transfer of Smith. Similarly, although cyber-bullying occurs outside the workplace, the courts are more willing to broadly interpret the connection with employment if the cyber-bullying can be shown to be incidental to the victim’s work or impact on their health, safety and welfare in the workplace. Liability will then rest with the employer to prevent foreseeable harm arising from such posts.
These comments are even more pertinent now, given the legislative developments since they were made which have formalised the definition of bullying and have placed an increased onus on employers to take reasonable steps to prevent workplace bullying.
What can the employer do?
- Firstly, policy is key. Employers should ensure that a social media policy is in place which makes reference to cyber-bullying and responsible use of the internet and social media with particular reference to the relationship between work and home. The policy should include a definition and some examples.
- Employees should also be made aware that there are many laws that might also be broken through cyber-bullying that carry heavy penalties including criminal charges, they include Misuse of Telecommunications, Stalking and Harassment, Criminal Defamation; just to mention a few.
- Including reference to social media, internet usage and electronic communication within bullying and harassment policies is also important.
- As with other forms of poor behaviour, encouraging employees to report incidents to managers or HR staff is also essential. Bullying or harassment via social media will be harder for employers to detect and an employer’s ability to deal with any issues relies heavily on employees coming forward with their concerns. For this reason, bullying and harassment training should reference conduct on social media and the internet to raise awareness and promote reporting.
The importance of training is further highlighted in comments from the judgement in the aforementioned Lee v Smith case, serving as a stark reminder of the potentially grave personal consequences to a worker when an employer does not take “reasonable steps”;
While there are detailed, comprehensive and appropriate equity and diversity provisions in place it is clear in this case that they were not adhered to […] Had she [the Applicant] received training, she may well have been better equipped to deal with the earlier sexual harassments by reporting the incidents. This might have ultimately have (sic) avoided the situation that arose with respect to the rape.
It is clear that taking all the appropriate steps to prevent inappropriate behaviour and promote a fair and supportive culture could mitigate significant risk to the organisation and avoid serious harm to workers.