In a time when millions of Australians are active online, and some engage regularly in harmful social media actions, what are the impacts on an organisation, and would a robust social media policy make any difference?
Technology and social media have blurred the lines between work and personal time for a long time now, and as such colleagues and those we work with for 80% of our week have become friends of FaceBook, Instagram, Twitter and the like. You could certainly be forgiven in being confused as to where your employee's work life ends, and personal life begins in relation to social media.
According to the FairWork Commission (FWC) and Federal Courts, companies need to take precautionary steps in order to be protected should their employees engage in harmful social media activity.
A good example of this is the case of Banerji v Bowles (2013) FCCA 1052 Mrs Banerji was an employee of the Department of Immigration and Citizenship. During 2006 and 2012 she began tweeting using the handle @LaLegale anonymously posting over 9,000 tweets, with at least one during her work hours. A large number of the tweets were harshly critical of her colleagues, the Federal Government and members of parliament. It was also reported that at no point did Banerji reveal she was a public servant.
In this particular case the Department of Immigration and Citizenship terminated Banerji's employment after an investigation found that she was the holder of the relevant twitter account. Although Banerji claimed that any communication she made via twitter was protected by an implied freedom of political communication, the judge did not accept this.
It was concluded that her conduct was in breach of the Australian Public Service Code of Conduct and Social Media guidelines. The code requires all employees to uphold APS values ''at all times''. The Australian Public Service social media guidelines also render it inappropriate for employees to make unofficial public comments that harshly criticise the government, politicians or their policies.
The Federal Court therefore made it clear that freedom of speech does not provide a licence for an employee to breach a contract of employment.
In the Banerji case the robust social media policy and Code of Conduct strengthened the employer's grounds for dismissal, where an employee had grossly misused social media, if there had not been such a policy in place the outcome could have been very different like in the Stutsel v Linfox case.
In the case of Linfox Australia v Glen Stutsel  FWAFB 7097 it wasn't so clear cut. Mr Stutsel a long time employee of Linfox Australia made a series of inappropriate and offensive comments on his FaceBook page about two managers at his workplace, and because of this his employer launched an investigation. After the investigation his employer Linfox Australia dismissed Mr Stutsel for serious misconduct. Mr Stutsel then bought about an unfair dismissal claim against his employer - which was granted.
It was reported by the Commissioner that the Group Manager for Workplace Relations concluded that the employee's conduct on FaceBook amounted to sexual and racial discrimination, which breached company policies relating to equal opportunity and diversity.
The Commissioner also took into account a range of 'other matters', and concluded that the dismissal was harsh, unjust and unreasonable. These included:
The differential treatment by the company of the other employees who made comments on the applicants FaceBook page. In this regard the Commissioner noted that none of the other employees who made offensive comments on the FaceBook page were the subject of any sanction by the company.
The employee's limited understanding of the privacy of FaceBook communications.
The employees ''extremely good employment record over some 22 years, his age and his employment prospects''.
There was no social media policy in place at Linfox Australia.
The lack of social media policy in this case, gave the Commissioner the freedom to disregard Linfox's expectations of employees' public commentary on social media, awarding the employee in question a win. So, if nothing else this case certainly reinforces the importance of having a social media policy and ensuring it is well implemented.
LegalVision has written an article around this topic, giving some good tips for employers:
A well executed social media policy should answer the following questions:
When does work stop and personal life start? The policy should include terms ensuring your employees cannot post something negative the minute they clock off work, even if they think that no one from work can see the comments.
What sort of conduct is and is not acceptable? Make sure to use examples in your social media policy.
What disciplinary measures are in place when an employee breaches this policy?
Another area employers should be vigilant around, is to act quickly if an employee breaches your social media policy.
Carefully detail the breach(es) and subsequent warnings (if appropriate) and ensure that all employees are aware of company expectations and provide a grounding for a legitimate dismissal should the need arise.
If you would like to know more about how to safeguard you, your company and employees within the social media world, contact one of our local coaches today!