Last week, Fairfax reported about a Norfolk Island public servant who had her pay docked after she “committed a breach of discipline” by posting comments on Facebook referring to the island’s administrator as “an a***hole”.
This story is a good reminder for both employers and employees about the pitfalls of social media and the blurred line between personal and professional lives.
In recent years, the Fair Work Commission has decided numerous unfair dismissal cases where employees have overstepped the mark on social media in various ways. Online negative comments about an employer (or manager) are not the only online behaviour that has the potential to cause damage to an employer’s interests or to the employment relationship.
Here are five online employee behaviours for employers to watch out for, several of which have taken centre stage in FWC decisions:
This employee has the propensity to take to social media and correct people or make comments to demonstrate their “expertise” in the employer’s business or industry. As demonstrated in Starr v Department of Human Services [2016] FWC 1460, this kind of online behaviour can cause serious headaches for employers, especially if that employee starts contradicting the appointed social media team in a public forum.
This employee doesn’t believe their employer should have any control over their online conduct away from work. Take for example the case of Pearson v Linfox Australia Pty Ltd [2014] FWC 446 where an employee flat out refused to acknowledge the company’s social media policy. He said, “as Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech…” The FWC disagreed and this case is authority for the position that employers are within their rights to take steps to protect their interests and reputation online, including by way of a social media policy that extends to how employee behaviour online could impact on the business.
This employee makes it their business to “friend” every new employee on social media and initiate them into the business. While it might sound friendly and well-intentioned, in Little v Credit Corp Group Ltd [2013] FWC 9642, one contributing factor to a finding that an employee’s dismissal was fair was this post:
“On behalf of all the staff at The Credit Corp Group I would like to welcome our newest victim of b*tt rape, [employee’s name]. I’m looking forward to s**ually harassing you behind the stationary cupboard big boy”
This is the employee who takes it upon him/herself to manage the employer’s online presence, even though it doesn’t form part of their job. The risk for an employer is this person may distribute misinformation and mislead clients or the public, represent their personal views as the employer’s position or derail the employer’s efforts to cultivate a particular online brand.
This employee heads to social media to vent their spleen about their employer or make disparaging remarks about their manager. These types of comments can get particularly serious and, as the Full Bench of the Fair Work Commission said in Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097, “the posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment.”
Employers need to be realistic about social media and accept that it plays a significant role in the way many employees choose to communicate with each other and the world. In doing so, the best thing employers can do is develop a clearly written social media policy and train employees on its content to make sure employees understand the employer’s expectations and the consequences of breaching the policy. Employees need to be regularly reminded that their actions online have the capacity to affect the business of the employer and the employment relationship. The message is to think about both your work and private life before you post.
Shane Koelmeyer is a director of specialist law firm Workplace Law.
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