Cyber-bullying through social networks is increasingly on the rise. The actions of these ‘trolls’ are often well calculated. With the intent of inflicting as much psychological damage on the individual as possible. The tactics can be obvious degrading intimidating behaviour to subtle action. Here’ a factual scenario of such subtle tactics.
A group of workplace bullies had sought out the Facebook site of a colleague. Disguised as a friends they gained access into their colleagues Facebook. The colleague accepted them into their site seeing no harm. These bullies then refused to make any more contact with their colleague on their Facebook site. They make it obvious by constantly communicating with each other. Inviting each other to social events and chit chat deliberately isolating their work colleague. This bullying eventually brewed over into the work place. These people were blocked from that site when their tactic became evident. Insidious behaviour. Obviously 8 working hours a day wasn’t enough time to spend on their victim. It took time at work to scheme such an attack. Did their supervisor know. Yes. Should employers be responsible for such behaviour? The following article discusses this issue.
Cyber bullying: challenge for employers to manage ‘trolls’
Sydney-based lawyer Fay Calderone discusses the emergence of cyber-bullying and the implications for employers, who could potentially be held responsible for the actions of employee ‘trolls’ for such bullying or harassment of co-workers.
Rise of the ‘trolls’
The rapid rise of social media has created a new platform for bullies, also known as cyber-bullying, resulting in faceless individuals (commonly referred to as ‘trolls’) using sites such as Facebook and Twitter, to bully, intimidate and harass. The potentially fatal impact of cyber-bullying has been emphasised by the suicide of Amanda Todd, a fifteen-year-old Canadian high school student who was aggressively bullied over Facebook, and TV personality Charlotte Dawson’s attempted suicide after she was the victim of a Twitter rampage.
Duties under Work Health and Safety laws
Persons conducting a business or undertaking (PCBUs) have a duty of care to ensure a safe environment and, therefore, to prevent the potential risks to the health safety and welfare of their workers arising from workplace bullying. While there is no definition of bullying in any workplace legislation, the Work Health and Safety Act 2011 (NSW) includes bullying as a hazard and currently leaves room for a broad interpretation as to what constitutes bullying.
The draft Safe Work Australia Code of Practice on workplace bullying [available from Safe Work Australia] is expected to be finalised in the first half of 2013 and currently defines bullying as ‘Repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to healthy and safety’ where ‘unreasonable behaviour’ is ‘behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, undermining or threatening’. The expedited introduction of the Code of Practice and uniform definition of ‘bullying’ across all states was recommended by the Australian Parliamentary Committee Report titled Workplace Bullying: we just want it to stop, which was released on 26 November 2012.
While cyber-bullying is evident on its face, the difficulty for employers remains that social media has blurred the boundaries between work and private life in an unprecedented way, making managing employee behaviour and professional boundaries extremely difficult. Colleagues follow each other on Twitter, add each other on Facebook and can now stay in contact outside of work hours and activities. The challenge for employers is in determining what are outside work activities and the extent to which they should regulate employees’ interactions via social media, particularly where such interactions have consequences on workplace relationships and/or the health safety and welfare of employees at work.
The case law has been well established — that employers are vicariously liable for bullying by their employees because it constitutes a breach of the duty to provide employees with a safe system of work. Where the employer is aware of the bullying and fails to take reasonable steps to prevent it, they may also be liable at a criminal level. In Workcover Authority (NSW) v Coleman  NSWIRC 317 the bullying took the form of a harmful initiation ceremony in the workplace in circumstances where the first director knew the bullying was going to occur and the second director became aware of it after the incident occurred. The inaction by both directors before and after the incident constituted a breach of the former Occupational Health and Safety Act 2000, and both were fined personally, as was the company.
More recently, the case of Brodie Panlock and her Vic employer, Café Vamp, has highlighted the onerous duty employers have to prevent bullying in the workplace and the devastating consequences that may arise from it.
Brodie Panlock was 19 years old when she committed suicide as a result of extreme bullying by three colleagues. The bullying included taunting, offensive sexual comments, throwing food, kicking, spitting, dousing her in oil, and offering her rat poison after her first suicide attempt. The business was fined $220,000 for failing to implement policies and training on bullying. The directors and the three employees were also personally fined for breach of their duties. The case was the catalyst for the Crimes Amendment (Bullying) Act 2011 (Vic), also known as Brodie’s Law, which extended stalking provisions to criminalise bullying in Victoria and also anticipates cyber-bullying as a pattern likely to cause mental or physical harm, or fear of it, and which may be penalised by up to ten years imprisonment.
From an unfair dismissal perspective, the recent case of O’Keefe v William Muirs Pty Ltd t/a Troy Williams the Good Guys  FWA 5311 demonstrates cyber-bullying in circumstances where an employee’s employment was terminated for explicit and threatening Facebook posts directed at the female operations manager responsible for payroll. The comments were posted outside of work hours and although Mr O’Keefe’s Facebook account was set on the highest security settings, colleagues in the workplace were ‘friends’ on Facebook and could view the post, albeit that he had made the post hidden to the person to whom it related. Fair Work Australia held Mr O’Keefe’s comments amounted to gross misconduct and a repudiation of his employment contract. Despite the nature of the conduct being outside the workplace, it was nevertheless connected to his employment, given that it was directed at a colleague and constituted harassment and intimidation.
Vicarious liability for out-of-hours conduct
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.
Polices are essential
The degree to which it is reasonably foreseeable that an employee may be harassed via social media is difficult to determine. Consultation with employees and a broad understanding of the social media platforms they are using is a useful starting point before the behaviour can be regulated. It is becoming critical for employers to have suitable and integrated bullying and harassment and social media policies in place that cover cyber-bullying. Indeed, the necessity of employers to develop policies in relation to social media was highlighted in Stutsel v Linfox Australia Pty Ltd  FWA 8444, where Fair Work Australia upheld an unfair dismissal claim because the employer did not have a social media policy outlining conduct that was permitted or prohibited and, therefore, had no grounds upon which to terminate the employee. If the policy already extends to cyber-bullying, the employer may be more likely to demonstrate reasonable steps were taken to prevent the action from occurring.
Tips for employers
The following tips may assist employers in developing policies that address cyber bullying:
- Evaluate the extent to which employees are in contact via social media.
- Include in the policy:
- a definition of bullying and cyber bullying, and include examples of conduct that may constitute cyber-bullying
- examples of websites considered to be social media sites
- what is considered appropriate and acceptable behaviour
- what is considered prohibited conduct such as harassment, discrimination, professional misconduct or conduct which is otherwise damaging to the business’ reputation.
- Develop a reporting and investigation process for bullying and cyber-bullying.
- Set out the consequences for engaging in bullying or cyber-bullying behaviour.
Source: Fay Calderone is director, MatthewsFolbigg Lawyers Workplace Solutions team, based in Parramatta, New South Wales. This article represents a brief summary of the issues discussed and should not be relied upon as a definitive or complete statement of the relevant laws.