Organisations are increasingly utilising their social media platforms to encourage customer feedback.
So what happens when the feedback provided is abusive, defamatory, demeaning or belittling?
Can the employer be liable for bullying or harassment from customers?
Under the Fair Work Act repeated unreasonable behaviour by an individual or group of individuals towards a worker, where the behaviour creates a risk to health and safety whilst at work, could amount to bullying. The Act however, is silent in relation to who the perpetrator of the unreasonable behaviour may be.
There are also obligations on employers under Work Health and Safety legislation to monitor and address workplace risks, including risks to an employee’s psychological wellbeing.
It would be prudent for employers to be mindful of customer comments about employees on official social media sites as well as having methods in place for monitoring and addressing any comments which may be considered offensive or abusive. This may include a statement on the social media platform that the organisation does not condone, abusive, derogatory or offensive comments in relation to its employees as well as removing the offensive feedback as soon as possible. Having a social media policy that defines acceptable use and how to deal with abusive and offensive social media posts is also increasingly important.
A recent Canadian example
A Canadian labour arbitration ruling highlighted an organisations responsibility to effectively manage social media accounts to protect employees from customer abuse. The union representing employees of the Toronto Transit Commission (TTC) filed a grievance demanding the TTC’s Twitter account be permanently shut down as it created a platform for passengers to harass, demean and belittle employees.
During the case the union presented tweets that showed customers using abusive, racist and homophobic language to describe employees. Three employee’s testified with one stating a customer took his picture and posted it to Facebook and Twitter, with a message about her displeasure in relation to how he handled her complaint. His picture was deleted by the customer but was then posted by another Twitter user with the message “this douchebag needs some disciplining”. The photo and the comment remained on the Twitter site for 12 months after the incident.
The TTC defended the grievance on the basis that they had legitimate objectives for creating and operating the Twitter account, and noted increasing expectations by customers to provide such a platform. The TTC’s position was that it was impossible to regulate the dialogue on the social media site and there were no reasonable steps they could have taken to address the offensive tweets.
The arbitrator agreed there would be little to prevent customers from posting offensive message but found the evidence showed inadequate responses by TTC, including ignoring some offensive comments from customers. The arbitrator found the TTC had failed to take all reasonable and practical measures to protect its employees from customer harassment via its Twitter account. While the arbitrator did not order the shutdown of the Twitter account, he did order the TTC to create a social media policy that would effectively address inappropriate tweets made to the Twitter account.
Although this case was heard via a labour arbitration ruling, the Canadian laws are similar to Australia in that an employer has a legal obligation to take all reasonable steps to prevent harassment of employees. This decision clarifies that duty in Canada extends to comments made by the public via the employer’s social media platforms.