Do Facebook comments amount to bullying?

The Fair Work Commission (FWC) dealt with an anti-bullying order application of a director who claimed she had suffered online bullying at the hands of the employer’s staff and members.

The director alleged that her ethics were being publicly and openly questioned on Facebook by “disgruntled and spiteful” employees who “were seeking to defame, bully and harass her.”

She claimed that the conduct threatened her mental health and filed the application before the FWC.

Association of social workers

The case concerned an application by “X” for anti-bullying orders against her employer, the Australian Association of Social Workers (AASW), and two named individuals, Y and Z. Their identities have been suppressed upon the parties’ request.

The AASW is a not-for-profit professional association; Y is the vice president of its ACT branch management committee, and Z is a committee member. Both are volunteers of the AASW.

X is a director of the AASW. She contended that she had been subjected to bullying by the employer and the two individuals (Y and Z) in connection with their online comments about the directors of the AASW.

Y and Z denied that X had been subjected to bullying. They argued that none of the relevant conduct occurred at work and could not constitute bullying under the FW Act. They said, “in any event, the conduct was not unreasonable, did not pose a risk to health and safety, and did not amount to bullying.” Z further argued that she had “no relationship with X” and that “the conduct complained of amounted to a single social media post expressing her personal opinion.”

Director’s arguments

Director X gave evidence that Y and Z had “behaved unreasonably” towards her in various ways. Her main arguments included the following:

• Since becoming a director of the AASW in November 2021, X claimed she had experienced bullying and harassment online. The alleged misconduct had occurred on Facebook as well as on professional networking websites. In response, X sent defamation letters to various members of the AASW.
• The online bullying escalated when the employer’s online page was “moderated poorly and allowed the site to become a vehicle for AASW members to bully directors by posting unreasonable negative comments that criticised directors and contained misinformation.” X’s requests to the AASW to improve its moderation of the site were refused. The bullying comments remain published.
• X was concerned about a link on the Facebook page to a new Facebook group. She believed that the purpose of this group was to publish false and malicious content about directors, such as questioning their adherence to ethical standards, and that comments posted by various persons on this site constitute bullying against her and other directors.

X said that the bullying of directors was “of concern both to her and to other directors, and that the psychological health of directors was at risk.” She said that “disgruntled and spiteful” staff and members, including Y and Z, “were seeking to defame, bully and harass her,” even suggesting in online posts that “she was not behaving ethically as a director, and that this presented a risk to her mental health.”

Workers who believe that they’ve been sexually harassed in the workplace can now ask the FWC to intervene.

FWC’s consideration

The FWC may make an anti-bullying order if it is satisfied that a worker has been “bullied at work,” and that there is a risk that the worker will continue to be bullied at work.

Moreover, a worker is “bullied at work” if they are at work in a constitutionally covered business, and an individual or group of individuals “repeatedly behaves unreasonably towards the worker” and that behaviour “creates a risk to health and safety.”

In this case, the FWC noted that a “modern workplace extends to the virtual and online world,” and “work-related online posts will be considered to have occurred ‘at work’ if the post has ‘a rational connection’ to the work a worker is required to perform.”

The FWC found that X’s role did not require her to be involved with social media, thus, the conduct that X complained about did not occur at work.

In considering whether the conduct amounted to bullying, the FWC said that the social media posts “expressed genuinely held views of those who disagreed with X”; it also said that there was no misinformation in Y and Z’s posts.

“Expressions of a point of view, while potentially confronting or upsetting, does not make those expressions unreasonable,” the FWC said in its decision. It added that the conduct amounted to “single incidents and not repeated, unreasonable behaviour causing a risk to health and safety.”

“[The] mere fact someone may be upset, offended, indignant, or even outraged with views of others does not make those views unreasonable or establish risk to a person’s mental health or safety,” the FWC said.

The commission reminded employers and employees alike that the purpose of an anti-bullying application is to protect a worker’s health and safety, and “if no protection is needed, no order can be made.”

Thus, it concluded that X was not bullied at work, and it was not satisfied there was a risk of future bullying at work.