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"Anti" Social Media, Employees and Dismissal

2012-12-12

Does your business have a social media policy? Tim Finemore shares some commentary, insight and guidelines on this issue.

When we hear of social media we immediately think of cyber communities such as Facebook, Linkedin and Twitter. Social media is widely used but yet it is still in its infancy as to the nature and scope of issues that can surface during employment.

Often employers establish policies and document the expectations of their employees through manuals and training, however many employers in Victoria have still not covered the issue of social media.

It is common sense that how an employee conducts himself or herself in a public environment can affect not only individual reputations but also the reputation of their employer. It is therefore vital for employers to have a social media policy in place to provide their employees with clear expectations to assist in the protection of their business and the employee/employer relationship.

There have been many instances where employees are found by employers in their use of social networking sites to have seriously breached the trust of the employer and/or committed acts of misconduct and serious misconduct resulting in dismissal. However employers are not always successful in defending a claim for unfair dismissal brought by employees in these instances.

An example of a relatively recent Fair Work Australia decision considering this issue is summarised as follows:

STUTSEL V LINFOX AUSTRALIA PTY LTD [2011] FWA 8444

In this case the employee was summarily dismissed for a range of posts and comments made on his Facebook page and considered by the Employer as racially derogatory against another employee and to amount to sexual discrimination and harassment against another employee.

The employee made a claim for unfair dismissal against his former employer and was successful in obtaining reinstatement and back pay.

It was found by Fair Work Australia that the employee's Facebook account was set up by his wife and daughter and that he believed that the account had been set on the maximum privacy setting available. It was considered that the employee's Facebook page was not a public forum despite being available to anyone with a Facebook account.

Despite being in poor taste, it was found that the comments posted by the employee were an expression of his private views.

It was also found that the chains of comments had the flavour of a conversation in a pub or café, although conducted in an electronic format, and that any external reader not familiar with the employer, would have considerable difficulty in making out what was going on.

In relation to comments made of a sexual nature about another employee, the main offending comments were made by the employee's Facebook friends. It was accepted that the employee did not known he could delete Facebook posts. 
The Employer did not have a social media policy, other than the employee was aware that he was not to use social media during work hours. It was said by Fair Work Australia that in the current electronic age, it is not sufficient to rely on outdated employee handbooks and many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies but that in this instance the employer did not.

We strongly recommend that an appropriate and tailored policy be developed for your business, however in the event that you do not have a policy in place, we recommend that you at the very least adopt an interim policy. You may refer your employees to the Department of Justice's video outlining the key points of their social media policy at the following address:

http://www.youtube.com/watch?v=8iQLkt5CG8I

The following considerations should be taken into account when developing a workplace social media policy:

  • The employer's expectations as to the employee's use of social media sites both during and outside work hours;
  • Conduct on social media sites that is considered by the employer to be inappropriate, constitute misconduct and serious misconduct;
  • The consequences and disciplinary action that will be taken in the event of breaching the employer's social media policy; and,
  • How the employer will actively and directly communicate its policy to its employees.

If you have any queries relating to this content please contact Tim Finemore attfinemore@richbenn.com.au. We are available to advise you and draw appropriate policies regarding social media use for your business and advise you on employment matters generally.

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