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Cyberbullying: An Employer’s Response Spot On

In a recent Queensland District Court decision, Robinson v Lorna Jane (Judge Koppenol, 3 November 2017), Ms Robinson made a common law claim for psychological and physical injuries, which she claimed arose from her employment between July and December 2012 as the manager of a Lorna Jane store.  It is important to note that this was a claim for breach of duty of care and negligence resulting in personal injuries, not a workers compensation claim or a claim arising out of the employment under the Fair Work Act or other legislation.

Ms Robinson’s claims (she sought more than $570,000 in damages) were all dismissed, primarily due to her evidence being highly unreliable.  The point of interest from an employment law point of view is her claim that she had been cyberbullied by her manager, Ms McCarthy, who was Lorna Jane’s learning and development manager.

On 20 November 2012, Ms Robinson became aware of two Facebook posts made by Ms McCarthy some weeks previously.  The Facebook posts read:

“I have discovered a new name for the people I despise – I call them “generators” purely because they fill their days generating more problems for me to deal with.  Generators are similar to mutants – people who are genuine oxygen thieves”

and

“What a day!  It is difficult to soar with the eagles when you are surrounded by turkeys.  Is it too late to pursue a different career?”

Ms Robinson believed these posts referred to her, and sent copies to Lorna Jane management.  Lorna Jane immediately spoke to Ms McCarthy, who was instructed to take the posts down immediately – which she did.  Lorna Jane also took disciplinary action against Ms McCarthy, removed Ms Robinson’s store from her control and arranged for Ms Robinson to report to another manager.

Ms Robinson claimed to have suffered psychiatric consequences from her awareness of the Facebook posts.  The Judge found that this claim had no substance.  He found that Lorna Jane was neither directly nor vicariously responsible for Ms McCarthy’s posts or Ms Robinson’s alleged injury.  It had strong social media and anti-bullying policies, which acknowledged the significance of social media bullying and instructed staff not to engage in it.

It was concluded that Ms McCarthy’s knowledge and disregarding of the policy was not sufficient to hold Lorna Jane responsible.

Ms McCarthy’s actions were personal, and well outside the scope of her employment (especially for a learning and development manager!).  Lorna Jane had no knowledge of the posts, and had not condoned or approved them.  Lorna Jane insisted on the posts being taken down as soon as it became aware of them, and took further action to separate Ms McCarthy from Ms Robinson.  Ms McCarthy having complied, there was nothing more that Lorna Jane could do about the deleted posts.  The Judge found that this was exactly what the company should have done.

Would Lorna Jane’s prompt and firm handling of the issue have stood it in equally good stead if this situation had arisen as an anti-bullying claim, or as part of a general protections/adverse action claim?

Putting aside Ms Robinson’s poor credibility, the actual connection with her workplace was tenuous – and it was not at all clear that the posts referred to Ms Robinson; so attributing them to Lorna Jane as “adverse action” taken by Lorna Jane would be difficult, and its firm handling of the  issue would have underlined that.

Similarly, Lorna Jane’s prompt and firm response would probably prevent an anti-bullying claim succeeding, since there would be no apparent ongoing risk in the workplace.

The lesson to be drawn from this case is that it is important to have a robust policy, and to act promptly to enforce that policy where questions of cyberbullying arise.

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