e'News - No excuses for failure to implement social media policy
Thursday, 22 December 2011
Fair Work Australia has just confirmed that it is essential for employers to implement a policy governing employee use of social media.
Transport giant Linfox has been ordered to reinstate a sacked employee, having summarily dismissed him for making derogatory and offensive remarks about Linfox managers on his Facebook page, including comments which were said to be racially offensive. The comments were discovered by one of the named managers, who said she was deeply upset by the comments.
But Commissioner Roberts of Fair Work Australia found that, although distasteful, the comments of the sacked employee could not be construed as racially offensive and did not constitute a valid reason for termination.
The Commissioner accepted evidence from the sacked employee that his Facebook account was set up by his wife and daughter and had the maximum privacy setting, or so he thought. The Commissioner also took into account the context of the posted comments, concluding that they had "much of the flavour of a conversation in a pub or café, although conducted in an electronic format".
The Commissioner found that the driver was fully aware that the comments on his Facebook page were "foolish" but that the page was "not a web blog, intended to be on public display. It was not a public forum".
Linfox's concerns that the employee's comments – which were highly critical of Linfox managers and Linfox's conduct in recent enterprise agreement negotiations – may be construed as being views endorsed by Linfox. The Commissioner found that, in the absence of any directive to the contrary, the employee was entitled to exercise his right of free speech and, within the forum he was using, the comments were not out of place.
But the most decisive factor in finding for the employee was the fact that Linfox did not have a policy in place governing use of social media, either at the time of dismissal in May 2011 nor by the time the matter came before FWA in October 2011. Linfox relied on its induction training and employee handbook, which were deemed insufficient. Commissioner Roberts said:
"In the current electronic age, this is not sufficient and many large companies have published detailed social medial policies and have taken pains to acquaint their employees with those policies. Linfox did not."
The result of this case may have been very different if Linfox had a sophisticated policy in place regulating employee use of social media.
It would be difficult for an employee to make out a case of unfair dismissal if the employer could show that its social media policy had been communicated to all staff and prohibited conduct such as disparaging co-workers, commenting on operational matters and airing workplace grievances, as the sacked Linfox employee had done.
In the absence of a social media policy, an employer may be precluded from taking disciplinary action against employees in the face of inappropriate and potentially damaging comments and behaviour on social medial.
This case confirms the need for employers to implement policies on appropriate use of social medial. It also suggests that time is up for employers to adjust to social media. Fair Work Australia has accepted that many employers have adapted to social media and have educated their workforce as to its appropriate use. Employers who have not adapted run the risk of finding themselves in the same situation as Linfox.
To read the full decision, please click here.
How can we help?
Our experienced team of lawyers can work with you to draft an appropriate social media policy, or to ensure that the policy you have in place is adequate and up to date. If you do not have a policy in place then we encourage you to contact us a matter of urgency and we can work with you to ensure that your interests are protected.
For further information please contact:
For information on our Workplace Relations & Safety Group click here. |
