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Workplace Bulletin
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How you can help prevent social media 


Monday, 2nd February 2015, by Loran McDougall

In today's Workplace Bulletin:
  • Case Law: Social media conduct and the FW Act anti-bullying scheme
Dear Reader,

In last Wednesday’s Workplace Bulletin, we looked at when an employee is considered to be ‘at work’ for the purposes of the Fair Work Act 2009 (Cth) (FW Act) anti-bullying scheme, and touched on the fact that this can include bullying that occurs on social media.
Bullying on social media can include:
  • posting critical or abusive comments;
  • posting photos or comments relating to a colleague’s behaviour; and
  • excluding a colleague from a group of colleagues on a personal social media page.
Fair Work Commission (FWC) decisions have indicated that social media bullying will be covered under the anti-bullying scheme even if the alleged bully engages in the bullying while not at work, as long as there is a connection with the workplace.
Below, Charles Power elaborates on the FWC’s stance on social media bullying under the FW Act anti-bullying scheme and looks at how you can help prevent your employees from being bullied on social media.
But first...
I want to quickly let you know about a brand new resource that Charles and his team have put together.
The Personal/Carer’s Leave Guide answers the many questions that this entitlement raises for employers.
PLUS, if you order it today you’ll receive The Compassionate Leave Guide at no extra charge.
Find out more here.
Until next time,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
Regulating the use of social media in your workplace can be a tricky business, especially when you don’t understand all the legal implications…
That’s where we come in…

Case Law: Social media conduct and the 

FW Act anti-bullying scheme

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
Bowker & Others v DP World Melbourne Limited (2014) looked at when a worker who is bullied by reading social media comment can access the FW Act anti-bullying scheme.
The applicants worked in the maritime industry and alleged they were being bullied by members and officials of the Maritime Union of Australia. The alleged bullying conduct included unreasonable and insulting Facebook comments about the applicants.
The FWC observed that the purpose of the FW Act’s anti-bullying scheme is to protect workers, and should therefore be interpreted broadly.
The FWC then ruled:
  • the bullying conduct is not limited to the point in time when the comments are first posted on social media – rather, the behaviour continues for as long as the comments remain on social media;
  • the alleged bully does not need to be ‘at work’ at the time the comments are posted, nor do they need to be a worker at all, e.g. they may be a customer;
  • the alleged victim needs to be a worker, but they don’t need to be at work when the comment is posted; and
  • the posts probably need a relevant connection with the workplace, e.g. the FW Act scheme would not apply if a worker reads a Facebook comment at work posted by an ex-boyfriend (however, the FWC did not ultimately decide on this point).
How can you prevent social media bullying?
It can be difficult to protect your employees from being bullied on social media, particularly given that the FW Act anti-bullying scheme does not necessarily require the bullying to occur at work.
However, you can help prevent social media bullying – and, as a result, minimise the legal risk associated with your employees’ misuse of social media – by implementing a good social media policy.
This will help you to show that you:
  • did not authorise the employee’s misuse of social media; and
  • took reasonable precautions and exercised due diligence to prevent the misuse.
Charles Power
Charles Power

Employment Law Practical Handbook

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