The rapid expansion of social media has changed society in many ways including in the workplace. When thinking of ‘workplace bullying’, we often think of situations that occur internally in the workplace, like:
- Harassing or ridiculing a worker;
- Ignoring a worker;
- Excluding a worker from work meetings/functions whilst other employees are able to participate; and
- Other general unreasonable and cruel behaviour towards a worker.
Sometimes the bullying contact can be direct and obvious but other times it can be indirect and subtle. The law mandates that bullying needs to be:
- Repeated unreasonable behaviour towards a worker; and
- This behaviour creates a risk to health and safety.
It is clear that bullying is prevalent in South Australia, and it is an unfortunate challenge for most workplaces to deal with. If not controlled, systematic bullying can cause serious psychological injury which may not only adversely impact the aggrieved worker, but their colleagues, their family, the business and society as a whole; for example, if the worker becomes incapacitated for work and needs to go onto workers compensation payments.
But when bullying extends to social media, things can become particularly tricky.
Whilst there are numerous obvious examples of how the use of social media can constitute bullying conduct, recent media attention focused on a seemingly innocuous and harmless action; ‘defriending’ a work colleague on Facebook.
At first instance, such seemingly innocent behaviour shouldn’t possibly form the basis of a bullying complaint. After all, as a Facebook user, surely we individually reserve the right to choose who we are and aren’t Facebook friends with.
Like with any allegation of bullying and harassment, context is paramount, and the individual pieces of evidence should not be looked at in isolation. In the recent matter involving Facebook defriending, it was determined that this conduct on social media was part of systematic repeated unreasonable conduct by one worker towards another. So when looking at the conduct as a whole, the allegation of bullying could be substantiated.
Another example of alleged bullying on social media involved a death threat. Unlike the example involving defriending, at first glance a death threat seems much more serious; after all, death threats can often lead to criminal charges. However, in the case involving a death threat, the conduct was deemed not to be bullying simply because it was an isolated incident and therefore not ‘repeated unreasonable conduct’. That’s not to say that making death threats necessarily goes unpunished; it may be that there are criminal charges possible for such behaviour.
Likewise, whilst this death threat may not technically amount to bullying, it may still give rise to disciplinary action due to the inappropriate nature of the conduct and potential breach of the business policy and work, health and safety requirements.
It is clear that bullying/harassment is not a straightforward area of employment law and careful consideration needs to be given to the specific facts surrounding each matter. What is clear, however, is the fact that the increasing prevalence of social media may continue to cause workplace problems if people are not careful and considerate about its use.
If you have been the victim of workplace bullying or other unreasonable treatment, we recommend that you seek immediate advice from a lawyer experienced in employment law.