Social Media Use: An Employer's Responsibility

Advances in technology have fundamentally changed the way in which people communicate both privately and in the workplace.

Forms of social media such as Facebook, YouTube and Twitter are increasingly part of the private and work lives of employees.

Two recent decisions show the tension between an employee's right to 'let off steam' on social media and the ability of an employer to dismiss an employee for employment-related outbursts on social media. The decisions highlight some of the risks associated with social media, provide guidance for employers as to what conduct involving social media will be sufficient to justify disciplinary action or termination of employment, and also demonstrate the need to have a detailed social media policy.

 
Mr Damian O’Keefe v Williams Muir’s Pty Limited [2011] FWA 5311

In this case, the employee, Damian O’Keefe, was dismissed for serious misconduct following comments he posted on Facebook regarding his employer and a manager.

Background

The employee posted the following comment on his Facebook profile page:

“Damian O’Keefe wonders how the f**k work can be so f*****g useless and mess up my pay again. C***s are going down tomorrow.”

The comment was made after work hours and seen by 11 work colleagues who were friends of the employee on Facebook. 

Although the employer did not have a specific social media policy in place, it maintained that the comment made by the employee was in breach of the workplace policies in relation to communications between staff, sexual harassment and workplace bullying. Accordingly, the employer dismissed the employee on the basis of serious misconduct in contravention of the workplace policies.

Outcome

The comment made by the employee was deemed to be a direct threat towards another employee. Whilst the comment was made out of work hours on the employee's home computer, this did not make any difference as the comment was read by work colleagues. Further, Fair Work Australia accepted that the separation between home and work is less pronounced than it once was.

Fair Work Australia noted that "common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred."

The dismissal was found to be fair and reasonable in the circumstances.

 
Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097¹

In this case a Linfox employee was dismissed for serious misconduct following derogatory and offensive comments he posted about his managers on Facebook.

Background

The employee was engaged by Linfox as a truck driver in April 1989. His employment was terminated in May 2011 for serious misconduct following the posting of comments about two of his managers on his Facebook page.

The employee maintained that he had a limited understanding of social media, was unaware that others could view his Facebook page, and that he was unaware he could delete comments made by others. The employee thought his Facebook profile was set to maximum privacy settings.

Linfox concluded that the comments on Facebook amounted to sexual and racial discrimination, which breached workplace policies relating to equal opportunity and diversity, and subsequently terminated his employment.

Outcome

In the original decision, the Commissioner found that the employee had been unfairly dismissed by Linfox, and ordered that he be reinstated and compensated for part of his lost wages. Linfox appealed to the Full Bench of Fair Work Australia.

The Full Bench found that the comments made by the employee did not contain any credible threat to the managers' wellbeing. Although the conduct of the employee in posting derogatory and offensive remarks about two of his managers on his Facebook page was inappropriate, there were a range of other considerations which meant that the termination of his employment was unfair. These included:

• The long period of the employee's satisfactory employment with the Company, his age and his employment prospects;
• The circumstances in relation to the publication of the offensive comments, particularly:
  • the belief by the employee that his Facebook page was set to maximum privacy settings and could only be viewed by himself and his Facebook friends;
  • that the comments were never intended to be communicated to the managers concerned;
• The conduct occurred outside of the workplace and outside of working hours;
• Some of the statements were not made by the employee, but by other persons, participating in the thread;
• Linfox did not take action against other employees who took part in the relevant Facebook conversations; 
• Linfox did not have any social media policies; and
• The Commissioner’s finding that the employee was “fully aware of the comments on his Facebook page were foolish and he regrets the entire situation”.

The Full Bench noted that whilst the employee's use and understanding of Facebook was an important consideration in the Commissioner's decision, as use of social media increases, these factors may be given less weight in the future.  

Guidance for Employers

The two cases provide some guidance on what will be considered when determining whether an employee has been unfairly dismissed following their inappropriate use of social media.

Employers can reduce their exposure by:

• Implementing a detailed social media policy;
• Affording procedural fairness when investigating  social media misuse; 
• Considering the content and context of comments;
• Considering the nature and availability of comments to the public; 
• Taking into account an employee's individual circumstances, such as length of service and employment history; and 
• Giving proper consideration as to why the proposed remedy (such as dismissal) is appropriate.

Both cases highlight the need for employers to consider any social media comment on a case by case basis and the need to have a clear social media policy. A proactive approach to social media can provide a strong basis for employers when addressing employee conduct.

How we can help
 
HWL Ebsworth is well placed to provide an appropriately detailed and compliant social media policy for your business. HWL Ebsworth can also assist with implementation and training, and where required, can provide guidance in conducting workplace investigations into complaints of inappropriate use of social media.

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¹ Linfox has appealed the Full Bench decision.

For information on our Workplace Relations and Safety Group click here.

Important disclaimer: The material contained in this publication is of a general nature only and is based on the law as at 27 November 2012. It is not, nor is it intended to be, legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.