Aug 252016
 

The age of social media provides us with the opportunity to read a news article, share a photo and connect with a friend – all with one click of a button. Unfortunately, having the world at your fingertips has also presented employees with opportunities to avoid work, and employers with new evidence of employees’ misconduct. Using social media in the workplace, or even sharing a comment outside of the workplace, might offend other staff, customers and negatively impact the employer’s business.

To gain some insight into how you can build a legal ‘firewall’ that protects you against social media related problems in the workplace, read on.

Excessive Use of Social Media in the Workplace

According to Fair Work Australia, excessive use of social media during work hours can get you fired. Over the course of three months, Richard O’Connor engaged in more than 3000 conversations in Gmail’s chat service. His employer sacked him for a ‘serious decline’ in productivity and for accepting payment for work without actually completing any. The case was decided for O’Connor due to the employer’s lack of evidence, but the Commissioner ruled that excessive internet usage for personal reasons may constitute misconduct. In this case, a clearly defined social media policy would have given the employer a reason to discipline and validly terminate the employee.

Personal Profile is No Protection

Another Fair Work Australia case ruled that social media comments made by employees outside their work hours can constitute grounds for dismissal. Damian O’Keefe posted comments on Facebook that defamed his employer and threatened female staff. Even though O’Keefe made these statements at home and using his private computer, his actions amounted to harassment. O’Keefe was fired soon after his co-workers discovered his comments.

The employee’s unfair dismissal application was rejected despite the fact that his profile was set to private and only reached ‘70 friends’ on Facebook. Fair Work Commission found that regardless of privacy settings, posts made to social media profiles are still public comments and can form grounds for termination.

Offensive or Opinion: Where does the line lie?

Recently, a Dominos employee was dismissed after he signed and shared an online petition calling for better pay for Dominos’ drivers. A mutual friend shared his post asking ‘What’s the go, mate,’ tagging and singling out the employee, which reached his manager. Fearing that he would be fired, the employee deleted the post and emailed the manager to offer his resignation and complain about being singled out. The manager’s reply indicated that the employee’s Facebook post breached the company’s social media policy. 

Another employee claim (not explored in this case) might be for unlawful discrimination based on expression of political opinion.

However, the employee may be able to gain protection under the Fair Work Act (FW Act), if he argues that he was unlawfully discriminated based on expressing a political opinion.

The Scott McIntyre case shows that the line between ‘offensive’ and ‘political’ is blurred. McIntyre was fired by SBS for ‘tweeting’ a controversial opinion on ANZAC Day, which the SBS claimed breached their workplace policies. Soon after, he applied to challenge what he considered to be ‘unlawful termination’ with the Fair Work Commission.

McIntyre is presently challenging the dismissal, arguing that he was fired for his political belief and that SBS did not conduct a proper investigation. The case shows that employers should seek legal advice and follow due process before dismissing workers because of their social media posts.

A Workplace Policy can Mitigate Risks

Before you decide to terminate your employee, consider whether you have done enough to protect yourself from a possible unfair dismissal claim. Glen Stutsel was sacked by his employer, Linfox, for serious misconduct as a result of comments posted to his Facebook profile. The comments were labelled ‘racially offensive,’ ‘derogatory’ and ‘discriminatory’ and were directed at his supervisors. Nevertheless, Stutsel won that case, claiming that his dismissal was unfair, harsh and unreasonable.

The Commissioner found that the employer did not have appropriate grounds for dismissal of Stutsel because the workplace lacked an appropriate social media policy.

Lessons for Employers

Employers should have a social media policy in place that outlines the expectations of online usage and the consequences for breach. It should cover both workplace and out of hours responsibilities.

Moreover, employers should make sure that they have sufficient evidence of their employees’ social media misconduct before firing them, ensuring that the comments are actually offensive, and cannot be described as ‘opinions’ under the FW Act.

Finally, employees should conduct a fair and vigilant investigation and give the employee a chance to respond.

Lessons for Employees

Employees should be aware of their employer’s social media policy and refrain from using social media in the workplace. Remember, your Facebook profile is a public forum; watch what you say online or it could just cost you your job!

Contact Clark McNamara Lawyers today to discuss how you can protect yourself in the workplace.

Clark McNamara Lawyers
Peter McNamara, Principal

Want more?

Read the full cases here:

Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444 (19 December 2011)

O’Connor v Outdoor Creations Pty Ltd [2011] FWA 3081 (24 May 2001)

O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311 (11 August 2011)

McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation [2015] FWC 6768 (1 October 2015) 

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