Navigating employment laws in Australia is an arduous task for small business owners. Recent news of a supervisor’s bullying behaviour constituted by unfriending (or defriending) an employee on Facebook, only adds to the confusion and in this case, hype.
Recent workplace bullying laws give the Fair Work Commission the power to address ongoing bullying behaviours in the workplace.
Employees are able to lodge an application with the Fair Work Commission to address and stop bullying behaviour.
Fair Work Commission will find that a person is bullied at work if:-
- a person or group of people repeatedly act unreasonably towards him/her or a group of workers; and
- the behaviour creates a risk to health and safety.
Examples of bullying include:-
- Behaving aggressively or intimidatingly;
- Behaving in a belittling or humiliating manner;
- Teasing or practical jokes;
- Pressuring someone to behave inappropriately;
- Excluding someone from work-related events; or
- Unreasonable work demands.
The bullying behaviour must happen at work.
Note that a feature of the bullying behaviour is that the behaviour must be ongoing or repeated – a single incidence will not be considered ‘bullying’.
Recent decision involving Facebook unfriending
A recent case to come out of the Fair Work Commission this month, concerned a woman (Ms. Roberts) who alleged she was being bullied by her supervisor at her place of employment, a real estate office in Launceston, Tasmania.
The Fair Work Commission found that Ms. Roberts had been repeatedly bullied by Mrs. Bird, her supervisor which impacted on her health and safety.
The bullying behaviours were extended over a period of time and included conduct such as:-
- Belittling and humiliating Ms. Roberts;
- Acting in an aggressive, rude and abrupt manner towards Ms. Roberts;
- Delaying the processing of Ms. Roberts work, particularly work of an urgent nature, which may have caused her to lose sales;
- Unreasonably damaging Ms. Roberts’ reputation with one of her clients;
- Treating Ms. Roberts differently to other employees by refusing to acknowledge Ms. Roberts’ in the morning or deliver her photocopying or printing to her as she did for all other members of the office;
- Ignoring Ms. Roberts in the office or otherwise speaking to her in an abrupt way and generally treating her differently to the other employees;
- A belittling attitude towards Ms. Roberts and making unreasonable comments to her;
- Not placing Ms. Roberts listed properties in the front window and calling Ms. Roberts “a naughty little school girl running to the teacher” at a meeting with her, as a consequence of Ms. Roberts enquiring of Mr. Bird (the agencies’ principal) as to why none of her listed properties were in the front window.
It was on consideration of the last point, which concerned the Facebook defriending. The Commission heard evidence that immediately after the confrontation between Mrs. Bird and Ms. Roberts, Mrs. Bird had defriended Ms. Roberts.
The defriending has received much media attention, some of which gives the impression that the act of the de-friending itself constituted the bullying behaviour.
This was not the case.
The unfriending acted as evidence of bullying behaviour
What the Facebook incident did do, though, was to back up Ms. Roberts’ allegations of Mrs. Birds’ unreasonable behaviours immediately prior to the de-friending: that is, the discussion regarding her listed properties not being displayed in the front window and Mrs. Bird’s alleged aggressive and humiliating confrontation with Ms. Roberts which included calling her “a naughty little school girl running to the teacher”.
The Facebook defriending by Mrs. Bird directly after the alleged incident lent support to Ms. Roberts’ version of events and led the Commission to prefer the evidence of Ms. Roberts, finding that it indicated a lack of emotional maturity and unreasonable behaviour on Mrs. Birds’ part.
The fact of the matter is, had the Facebook defriending occurred as an isolated incident, it would not have amounted to bullying nor would it have given Ms. Roberts eligibility to apply to the Commission.
Read in its entirety, this decision highlights that to be successful in an application, it must be established that the bullying behaviour was repeated and ongoing in accordance with the requirement of the Fair Work Act.
In order for it to be bullying, the behaviour must also create a risk to health and safety. Ms. Roberts’ was diagnosed with depression, anxiety, prescribed medication and was being treated by a psychologist. She satisfied the Commission that the behaviours cited above posed a risk to her health and safety.
A Guide to Anti-Bullying in the workplace can be found here.
The full decision can be found here.
The Fair Work Act can be found here.