Workplace bullying: After working hours and online

Published 31 Jul 2019

HR policies typically address forms of harassment and discrimination, what's acceptable and the consequences for employees. However, what some organisations fail to address is online or after-hours behaviour.

Whether or not the company themselves are at fault, they're often held liable for any form of online harassment or bullying that occurs in connection with a person's job and therefore must protect themselves against the behaviour of their employees.

Workplace discrimination and employer responsibility

Employers have a responsibility under Australian anti-discrimination law to protect their employees from harassment and bullying. To minimise potential liability, organisations must be able to prove they've taken all reasonable steps to prevent this type of behaviour.

If they cannot prove this, they could be legally responsible for acts of discrimination or harassment because the behaviour took places in connection with the victim's work. The situation is the same if the bullying is found to have taken place online.

However, just like offline harassment and discrimination, the legal situation is often complex. There are differences of opinions in what constitutes unfair behaviour whether on- or offline, and bullying is often indirect or subtle, not always obvious to other people.

Recent years have seen colleagues get in trouble with the law for offending colleagues via social media. Even the act of 'defriending' a colleague made it into the courts in one case. Meanwhile, a case of sexual harassment was lodged when two colleagues shared an apartment while working away from home, despite the incident happening after the working day had finished.

What can organisations do about social media bullying and discrimination?

It's important that employees understand that their responsibilities to their colleagues continue outside of the immediate work environment. It's important that employers find ways to work this knowledge into the workplace effectively so that they can demonstrate they have taken all reasonable steps to prevent workplace bullying.

  • Workplace policies - organisations can ensure that their HR policies that cover bullying and discrimination include online and social media use.
  • Explaining definitions - all employees should be clear, through training sessions or documentation, that 'at work' is a fluid term that does not mean that a comment made after hours on social media is exempt from being classed as workplace bullying.
  • Disciplinary procedures - ensuring that all staff are aware of the processes and procedures they can follow should they believe they are a victim of bullying helps everyone understand what is or is not acceptable behaviour, as well resolve the issue more quickly.

Whether you've been a victim of workplace harassment, or you want to ensure your organisation is protected, talk to the team at Malouf Solicitors. We have decades of experience workplace law and can help you understand how it applies to your situation.

Please call us on 02 8833 2000 to speak with a lawyer

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