Abuse from the Anti-Mask ​‘Activists’: The Oblig­a­tions of Employers

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.