A recent test case decision handed down by the Full Bench of the Fair Work Commission (Commission) has ruled that comments posted on social media can amount to workplace bullying even if neither the person who posted them or their target were at work at the time. The case highlights the importance of employers having a strong social media policy in place.
The Full Bench held that the posted comments constitute ‘bullying at work’ if the worker reads them later while at work.
Background facts
In Bowker et al v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others three employees of DP World Melbourne Limited each made an application to the Commission under section 789FC of the Fair Work Act 2009 (the Act) for a declaration that they had been bullied at work and for an order to stop the bullying.
The allegations of bullying were made against employees of DP World who were members of the MUA, and by MUA officials.
It was alleged these employees had posted various unreasonable and insulting allegations about the applicants on Facebook.
It was also alleged the applicants were threatened and excluded.
The respondents claimed that the alleged conduct was not made ‘at work’ within the meaning of s.789FD of the Act. This is relevant as the Commission only has jurisdiction to make orders to stop bullying if, among other things, the Commission is satisfied that ‘the worker has been bullied at work’ (s.789FF(1)(b)(i) of the Act).
Meaning of ‘at work’?
The Full Bench stated that the concept of being ‘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. This might include being on a meal break or accessing social media while performing work.
Therefore a worker could be considered to be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day.
As a result, the Full Bench found that the worker need not be ‘at work’ at the time the comments were posted on Facebook. It would suffice if they accessed the comments later while ‘at work’.
Summary
The Full Bench ruling highlights the need for companies to have clear social media policies. These policies must make it clear that posting inappropriate material on social media sites about the company, managers or employees is unacceptable.
Further information
If you are an employer and need advice on issues arising from alleged workplace bullying, please contact us for an obligation free and confidential discussion.
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au
Disclaimer
This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.
Related insights about employment law for employers
-
Pay secrecy laws come into effect
The Fair Work Legislation Amendment Act 2022 (Cth) has been passed, introducing workplace laws and changing existing rules. Employers must now ensure job ads include minimum wage info and protect confidential info when determining pay. This article provides an overview of the implications.
-
Employers now required to provide paid domestic violence leave
The Federal Government has proposed a bill that provides eligible employees with paid family and domestic violence leave. Find out more about the proposed changes and how they could affect your business.
-
Ex-employees and intellectual property protection
Ex-employees can be a threat to a company’s intellectual property, but with the right contractual clauses, employers can protect their trademarks, copyright, patent, and design. Learn more about how to safeguard your company’s intellectual property.
-
Cost awards in unfair dismissal cases – part 4
This article examines the rare but possible situation in which an employee could be liable to pay the employer’s costs in an Application under the Fair Work Act 2009 (Cth). Find out more about this situation and the case of Ewan Chapman v Ignis Labs Pty Ltd t/a Ignis Labs [2021] FWCFB 932.
-
Cost awards in unfair dismissal cases – part 3
This article looks at when costs orders can be imposed on a party to an unfair dismissal application, with an example of how costs orders can be imposed on a complainant employee.
