Facebook friends aren’t forever, but colleagues?

The Fair Work Commission (FWC) recently made anti-bullying orders arising from an ‘un-friending’ on Facebook and other workplace conduct.  The decision highlights the need for companies to implement a sufficient anti-bullying policy and training regime.

The anti-bullying orders were made against a Tasmanian Real Estate Agency, View Launceston.  The conduct complained of began in November 2013 and continued until January 2015, when the property consultant concerned was ‘un-friended’ on Facebook and likened to a “naughty little school girl running to the teacher”.  Despite implementing a last minute anti-bullying policy and manual, the FWC found that there was a risk the bullying conduct would continue and made the anti-bullying orders.

The Fair Work Act 2009 (Cth) outlines 3 elements that must be present for workplace bullying to be established.  The conduct must:

1. be repeated;
2. be unreasonable; and
3. create a risk to health and safety.

The ‘un-friending’ and naughty school girl comment may not have been bullying behaviour if they were isolated incidents.  However, the behaviour was chronic and habitual since November 2013 – the ‘un-friending’ just might well have been the straw that broke the camel’s back.

Generally, the behaviour complained of prior to the Facebook incident was belittling, rude and unreasonable.  Examples of the conduct in question include deliberately delaying her property listings, ignoring her, humiliating her, acting aggressively, generally treating her differently to others in the workplace.  A director also made a suggestive comment about her sexual orientation to a colleague.  The FWC found 8 of the 18 allegations to be substantiated.

The property consultant was later diagnosed with depression and anxiety from the alleged conduct.  She was able to subsequently produce a medical certificate which declared her only fit to return to work if the FWC hearing occurred and anti-bullying orders were put in place.

View Launceston argued that it had reduced the risk of bullying through the implementation of a new anti-bullying policy and reference manual.  The FWC disagreed, and found that because View Launceston denied the bullying had occurred it would not have applied the policy or the manual even if they were available.

The FWC issued an order under the Fair Work Act 2009 (Cth) to stop bullying at the property consultant’s place of work.

Lessons for employers:

• Early prevention and impartial investigations are key – stop misconduct the moment it occurs.
• Conduct on social media and outside the traditional workplace is increasingly being considered conduct in connection with work.
• Ensure you have an adequate anti-bully policy in place and regularly train employees on their obligations.