Sticks and Stones: Painful Words on Social Media

7 April 2017

In what may very well be a world first, a Canadian judge recently found that the Toronto Transit Commission (“TTC”) failed to protect their employees from abusive tweets.

Employees monitoring the TTC’s social media pages were found to have been harassed by members of the public and subjected to offensive and often threatening language. In failing to take reasonable steps to protect employees from this harassment, by, for example, not allowing its employees to block contact with the offending customers, the Canadian Labour Arbitrator, Robert Howe held that TTC had breached its OH&S obligations.

The question then arises – could the anti-bullying provisions under Australia’s own Fair Work Act 2009 extend to allow customers to be the ‘bully’?

In a word, yes.

The notion that a customer can be a bully that an employer must protect an employee against is not a new proposition in Australia. In 2014, the Fair Work Commission decided that Facebook posts made by non-employees which targeted the effected employees’ actions and behaviour while at work did constitute bullying, and that the employer had failed to adequately take steps to prevent it from occurring.

Where an employee can demonstrate that the bullying behaviour arises during the performance of their job, and that their employer is able to exercise control over it (whether by removing the employee from the situation, or stopping it entirely), an employee may validly bring an action against his or her employer under the anti-bullying provisions of the Act.

While for many employers, the circumstances of the Canadian TTC case seem far-fetched, businesses which have customer feedback mechanisms, particularly through social media, should take heed.

While an employer is generally unable to regulate what is and isn’t posted on their social media pages, a clear social media policy ought to be in place; that dictates that offensive and threatening attacks on employees are unacceptable and will be responded to appropriately. This social media policy and a mindful adherence to reasoning of our Canadian colleagues should provide ample protection against such claims.

Timothy Ashton of Hentys Lawyers has over 25 years of experience in workers compensation and industrial relations, and has worked with a number of multi-national companies and household names. Please contact Timothy for advice by sending an email to hjk@hentys.com.au.