Abuse from the gen­er­al pub­lic: The oblig­a­tions of employers

Recent­ly a radio pre­sen­ter on ABC radio in Ade­laide broke down in tears on air after receiv­ing an abu­sive text mes­sage from a lis­ten­er which had been sent through the sta­tion’s text feed­back number.

The text crit­i­cised the pre­sen­ter stat­ing that she had she had con­duct­ed ​“a piti­ful inter­view”, claimed what she said was ​“awful”, that she had ​“embar­rassed the inter­vie­wee” and had ​“pro­vid­ed excru­ci­at­ing lis­ten­ing”.

In react­ing to the feed­back elicit­ed on the pub­lic broad­cast­er’s text line (of which this text was just one exam­ple of the crit­i­cal mes­sages received) the pre­sen­ter said:

“We don’t always get things right here, but we do always try our best. We sit here with a text line in front of us, and it just adds up.”

The pre­sen­ter has since received sub­stan­tial sup­port from her co-host, media col­leagues and the gen­er­al public.

In response the Man­ag­ing Direc­tor of the ABC said:

“Per­son­al abuse, threats and harass­ment, are not accept­able. Under any circumstances.”

She added:

“We are also look­ing inter­nal­ly and exter­nal­ly at addi­tion­al mea­sures to pro­tect our peo­ple. This includes peer sup­port and safe engage­ment with our audiences.”

This inci­dent once again rais­es the vexed ques­tion of how to bal­ance chan­nels for feed­back from the gen­er­al pub­lic (whether they be through a mech­a­nism estab­lished by the employ­er direct­ly or accounts on social media plat­forms) with the duties owed by employ­ers to pro­tect the health and safe­ty of staff. 

The Inter­na­tion­al Experience

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 TTC employ­ees 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. 

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.”

The Aus­tralian Position

Employ­ers of staff sub­ject to feed­back or com­men­tary from the gen­er­al pub­lic 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: 

• (a) to elim­i­nate risks to health and safe­ty, so far as is rea­son­ably prac­ti­ca­ble, and
• (b) if it is not rea­son­ably prac­ti­ca­ble to elim­i­nate risks to health and safe­ty, to min­imise those risks so far as is rea­son­ably practicable.

As the recent ABC radio inci­dent pub­licly demon­strat­ed, mali­cious, ad hominem abuse which is seen by the employ­ee to whom the vit­ri­ol is direct­ed can pose a risk to the health and safe­ty of that employ­ee (par­tic­u­lar­ly if it occurs fre­quent­ly). There is also a risk to those whose duties include oper­at­ing the feed­back mech­a­nisms such as social media accounts; while the abuse may not be about them they may be fre­quent­ly exposed to it poten­tial­ly cre­at­ing a harm­ful sit­u­a­tion for them as well. 

The anti-bul­ly­ing pro­vi­sions under the Fair Work Act can also apply to cir­cum­stances of this kind.

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 abused by a mem­ber of the pub­lic could bring anti-bul­ly­ing pro­ceed­ings in the Fair Work Com­mis­sion, seek­ing orders (against both that per­son and the employ­er) to pre­vent the bul­ly­ing con­duct from continuing. 

Action for employers

This can be a prob­lem­at­ic issue for employ­ers. On the one hand, robust feed­back from the gen­er­al pub­lic is often right­ly con­sid­ered to be essen­tial to the suc­cess­ful func­tion­ing of an organ­i­sa­tion. On the oth­er hand, when that feed­back lacks basic civil­i­ty and con­sti­tutes an unjus­ti­fied per­son­al attack on a spe­cif­ic employ­ee rather than an appro­pri­ate cri­tique of the prod­uct or ser­vice being pro­vid­ed then, it can become a health and safe­ty issue. 

Employ­ers need to turn their mind to the feed­back mech­a­nisms they have in place and how to strike a bal­ance between these two poten­tial­ly com­pet­ing con­sid­er­a­tions. The old adage ​“the cus­tomer is always right” (or its vari­a­tion, ​“the cus­tomer is king”) can reflect a men­tal­i­ty that tac­it­ly con­dones abuse to appease cus­tomers at the expense of the wel­fare of employees. 

Some steps employ­ers should con­sid­er adopting:

• Mod­er­a­tion or fil­ter­ing of feed­back to insu­late employ­ees from abu­sive mes­sages direct­ed towards them.
• Estab­lish­ing and enforc­ing rules of engage­ment on feed­back mech­a­nisms or plat­forms so that ad hominem attacks will not be coun­te­nanced and those who engage in it will be restrict­ed or blocked from access­ing the mech­a­nism or platform.
• Pro­vid­ing train­ing and sup­port for those employ­ees in roles or posi­tions that could leave them open to per­son­al abuse.
• Estab­lish­ing pro­to­cols for deal­ing with such abuse, includ­ing de-esca­la­tion strategies.