Online workplace bullying is becoming an ever increasing concern for both employers and employees.

A study conducted by AVG Technologies found that 90% of the 4000 people surveyed believed that cyber bullying included posting negative comments on a social media site about a colleague’s appearance at a work event. It also found that 80% believed cyber bullying included criticising a colleague behind their back through email, instant messaging, social media or text messaging.

But do these comments amount to bullying in the workplace if it occurs outside work time?

Recently, the Fair Work Commission decided when out-of-hours social media activity can constitute workplace bullying.

They found that:
  • “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;
  • The relevant behaviour is not limited to the point in time when the comments are first posted on social media. The behaviour continues for as long as the comments remain on social media.
  • The worker need not be 'at work' at the time any social media comments are posted, it would suffice if they accessed the comments later while 'at work'.
  • If bullying behaviour takes place outside of working hours on the person's home computer, and the worker who is being bullied only accesses that information on their home computer and not while they are 'at work', this would not be regarded as “workplace” bullying for the purposes of a stop-bullying order.
Therefore, for certain behaviour on social media to be considered as “workplace” bullying, consideration will need to be given to where the events took place, when the events took place, and who was involved in the events.

So what does constitute workplace bullying and what can employees do if they have been subjected to such behaviour — on social media or otherwise?

Workplace bullying does not just involve social media and can present in many ways. Workplace bullying is defined as repeated and unreasonable behaviour directed towards a worker or a group of workers that gives rise to a risk to health and safety.

What are some examples of workplace bullying by employers or other employees?

  • Abusive, insulting or offensive language or comments;
  • Unjustified criticism or complaints;
  • Spreading malicious rumours, gossip, or innuendo;
  • Threatening phone calls, text messages, or emails;
  • Deliberately excluding someone from workplace activities;
  • Withholding information that is vital for effective work performance;
  • Setting unreasonable timelines that are impossible to meet or constantly changing deadlines;
  • Setting tasks that are unreasonably below, or well beyond a person’s skill level;
  • Denying access to information, supervision, consultation or resources to the detriment of the worker;
  • Deliberately changing work arrangements such as rosters and leave to inconvenience a particular worker or workers.
However, not all behaviour that may appear humiliating, threatening, intimidating or demeaning by and employer or supervisor is regarded as workplace bullying.

What does not constitute workplace bullying?

  • Reasonable management action by an employer or supervisor in connection with a worker’s employment providing it is carried out in a reasonable manner;
  • Feedback about an employee’s performance by their employer or supervisor;
  • A transfer, demotion, discipline, counsel, retrenchment or termination of employment (providing the employer is acting reasonably and lawfully)
  • Workplace conflict such as differences of opinion and disagreements;
  • A single incident of unreasonable behaviour.

What can an employee do if they reasonably believe they are the subject of workplace bullying?

Employees have several options open to them to deal with workplace bullying including:
  • Speaking with their employer or supervisor;
  • Making a written complaint to their employer or supervisor;
  • Applying to the Fair Work Commission for an order to stop the bullying;
  • If the bullying is discriminatory - making a complaint to the Australian Human Rights Commission;
  • If the bullying is threatening in nature - reporting the behaviour to the police;
  • If an employee has suffered a psychological injury as a result of the bullying - applying to WorkCover Qld for compensation benefits (for what is known as a statutory claim).
A large portion of mental health claims are lodged as workplace bullying. Safe Work Australia data shows that the median cost of workplace bullying claims in Australia is around $20,900. WorkCover Qld received over 3,700 mental health claims in 2014-2015 and paid out over $45 million in compensation costs.

Once an employee has an accepted statutory claim with WorkCover Qld for their psychological injury, they have the right to bring a common law damages claim against their employer. To be successful in such a claim an injured employee will have to prove that their employer was negligent by failing to take certain steps to minimise their exposure to such an injury, and by not doing so it was reasonably foreseeable to them that their employee would suffer a psychological injury.

Employers have a primary duty of care to ensure, as far as it is reasonably practicable, that their workers are not exposed to health and safety risks. This extends to the mental health of their employees. Therefore, employers have an obligation placed upon them to deal with workplace bullying.

What can employers do to minimise their employees exposure to workplace bullying?

  • Set the standard of workplace behaviour through a code of conduct or an anti-bullying policy. These policies should also address employee conduct on social media;
  • Implement workplace bullying reporting and response procedures;
  • Review the effectiveness of actions taken to prevent workplace bullying;
  • Respond to workplace bullying reports seriously and quickly whilst maintaining confidentiality;
  • Attempt to resolve any matters and conduct follow up reviews
  • Provide information, training and supervision as well as defining job roles and provide employees with the resources, information and training they need to perform the role.
Workplace bullying, whether via social media or otherwise, is a very real issue and concern for both employees and employers. Employers must do their part to ensure that their employees are not exposed to workplace bullying as far as it is reasonably practicable.

At the very least employers should have an anti-bullying policy in place and ensure that all employees are aware of the policy and what it contains. Employers/supervisors themselves should also be aware that certain behaviour by them may also constitute workplace bullying.

Any failure by an employer to take steps to minimise bullying may see them liable in negligence to an employee who has suffered a psychological injury as a result.  As the use of social media increases, there is a need for greater education around it, as well as increased attention and care by both employees and employers to their social media use.

If you feel you have suffered a psychological injury due to your employer’s negligence you may be able to make a claim. Fill out a free case review form or call Gouldson Legal to speak to one of our expert lawyers about your options.



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