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October 8, 2015

Unfriending a colleague on Facebook was part of a pattern of harassment


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Yes, unfriending a co-worker can form part of a workplace harassment complaint. However, the issue is a little more complex than was first reported by various news media last month.

Discussion was sparked by a ruling from Australia’s Fair Work Commission, which concluded in Roberts v View Launceston Property Ltd that a staff person at a real estate office in Tasmania was harassed by her coworker.

Ms. Roberts alleged a number of incidents, including being unfriended on Facebook, as evidence of harassment and bullying. Other incidents included yelling at her and belittling her in front of others. Nine of those allegations were substantiated.

Here in Ontario, ordinarily harassment will require a pattern of behaviour. There are a number of anti-harassment provisions, including in the Human Rights Code, the Occupational Health and Safety Act (OHSA), and the Criminal Code, but here’s the definition of workplace harassment in OHSA:

“workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

Did you spot the key phrase? Decision makers will generally distinguish between a single incident and “a course of” incidents. There are exceptions for outrageous single incidents, but generally they are looking for a pattern of behaviour.

There is a lot to say about workplace harassment— about, for example, the obligations on employers to investigate, who is protected and who isn’t, whether the burdens of proof are fair — but to understand the Roberts case, the key takeaway is that decision makers will look for a pattern .

It’s one of the more mercurial aspects of these types of cases. A single incident, if it were isolated, often wouldn’t amount to objectionable behavior. That’s why such complaints often involve a large number of small incidents, ranging from the seemingly benign to the more obviously inappropriate.

It can be hard for complainants to properly explain why they felt bullied and harassed by incidents which seem minor on paper. But by placing those incidents alongside each other, by showing a course of conduct, they can complete the picture.

Some of the incredulity that greeted the decision was probably rooted in a lingering feeling that a person’s behaviour on social media like Facebook and Twitter is not, somehow, real. There is no doubt that courts are increasingly prepared to take social media seriously in assessing complaints.

So when the Daily Mail reported that “unfriending a colleague on Facebook amounts to workplace bullying,” that wasn’t really the whole story, given that there were eight additional incidents. Far fewer than nine would be enough in most of the world to prove workplace harassment.

(Photo by Mark Sebastian used under a creative commons licence.)

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