One very recent and unwelcome phenomenon during the Covid-19 pandemic in Australia has been the emergence of the anti-mask “activists” (often described using the recently minted pejorative “Karen”). Media reports (largely based on social media posts) suggest they are especially prevalent in Victoria, where masks in public have been made compulsory. These activists will enter a retail outlet where masks are a condition of entry (for some reason Bunnings seems to be a favourite), refusing to wear a mask and insisting they be allowed to shop or engage in other transactions without doing so. They sometimes support this contention with bizarre but deliberate syntax (“living man” or “living woman”) based on widely discredited pseudo-legal arguments.
There is also a performative aspect to the process, with the objectors often filming staff and then uploading the resulting video to social media accounts where like-minded people coalesce, share the content and ferment outrage. To add an element of drama, in the course of raising their objections some of these people can get quite aggressive with staff. Fortunately, at the time of writing, there do not appear to have been any full-blown confrontations in Australia as has happened in the USA. This is a testament to the calm, professional and dignified way in which staff in Australia have dealt with the issue, to their great credit.
These incidents, however, raise the issue of the duties owed by employers to protect the health and safety of staff when these situations arise.
The Australian Position
Employers of staff who might be confronted by anti-mask activists should reflect upon their legal obligations to protect the health and safety of those employees. Two sources of such obligations are the Work Health and Safety Act 2011 (NSW) (WHS Act) and the Fair Work Act 2009 (Cth) (Fair Work Act).
The WHS Act relevantly requires employers:
- to eliminate risks to health and safety, so far as is reasonably practicable, and
- if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
Abuse of the kind engaged in by some anti-mask activists can pose a risk to the health and safety of the employees to whom it is directed (particularly if it occurs frequently). This can be compounded if video content showing the worker being abused is then uploaded to social media accounts where the abused worker is held up to publicly accessible vitriol from anti-mask activists.
The anti-bullying provisions under the Fair Work Act might also apply in circumstances of this kind and could potentially be deployed against anti-mask activists personally.
Under the Fair Work Act, a worker is bullied if, while at work, an individual, or group of individuals, repeatedly behaves unreasonably towards that worker, and that behaviour creates a risk to the worker’s health and safety.
While anti-bullying matters almost invariably deal with colleagues, a customer can be a‘bully’ for the purpose of the Act. This was the case in the Full Bench Fair Work Commission decision of Bowker & Ors v DP World MUA & Ors [2014] FWCFB 9227, which related to conduct over social media, in which it was held:
“The individuals engaging in the unreasonable behaviour need not be workers, for example they could be customers of the business or undertaking in which the applicant works.”
This decision opens up the possibility that an employee repeatedly abused by an anti-mask activist could bring anti-bullying proceedings in the Fair Work Commission, seeking orders against that person (and the employer) to prevent the bullying conduct from continuing.
The International Experience
Although it arises in a different (pre-Covid-19) context and related to general customer feedback rather than specific anti-mask activism, some guidance on this issue can be taken from a labour arbitration ruling in Ontario, Canada which ruled the Toronto Transit Commission (TTC) had failed to take all reasonable and practicable measures to protect its employees from abuse and harassment received through a Twitter account @TTChelps, which the TTC specifically established to directly interact with the public.
Some of the epithets that had been directed by the public to @TTChelps about TTCemployees included (and these examples are at the milder end of the abuse in question)“morons”,“pricks”,“rudest people on the planet”,“insane” and“grumpy bastard “. Sometimes these terms of abuse were accompanied by photographs of staff members to whom the abuse was being directed (this is similar to the uploading of videos of staff members being abused by the anti-mask activists – as noted above, some of the abuse of retail staff in the anti-mask content might be secondary, taking place in response to the videos uploaded on social media accounts or other online platforms used by the activists.)
The union argued that TTC breached its obligations to employees by not adequately protecting them from harassment by, inter alia, failing to effectively manage or sanction those who engaged in abuse.
The Arbitrator essentially agreed with that submission and held:
“To deter people from sending such tweets, @TTChelps should not only indicate that the TTC does not condone abusive, profane, derogatory or offensive comments, but should go on to request the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. If that response does not result in an offensive tweet being deleted forthwith, @TTChelps should proceed to block the tweeter. It may also be appropriate to seek the assistance of Twitter in having offensive tweets deleted. If Twitter is unwilling to provide such assistance, this may be a relevant factor for consideration in determining whether the TTC should continue to be permitted to use @TTChelps.”
Action for employers
While the maxim ‘the customer is always right’ generally informs the way in which employers expect their staff to treat the public, when customers become hostile or abusive employers need to support their staff and take active steps to protect the health and safety of workers.
Given their apparent propensity to film and upload abusive content, which can lead to secondary online abuse from sympathisers, anti-mask activists currently pose a heightened risk.
Some steps employers should consider adopting to address the risks arising from this phenomenon:
- Establishing protocols for identifying and dealing with such abuse, including de-escalation strategies.
- Training staff in those protocols.
- Engaging additional security.
- Public statements that there will be a zero tolerance approach to such conduct to dissuade anti-mask activists.
- Banning or restricting those who abuse staff from access to the premises.
- Banning or restricting filming of staff.
- Establishing and enforcing rules of engagement on online feedback mechanisms or platforms so that ad hominem attacks on staff enforcing anti-mask rules will not be countenanced and those who engage in it will be restricted or blocked from accessing the mechanism or platform.
