The line between our professional and personal lives has always been easy to blur, but it is becoming more and more important for employees to be mindful of their actions, particularly in the context of social media, according to employment lawyer DEAN FRITH.
An employee’s behaviour outside working hours can lead to legal consequences for the employee and their employer, in circumstances where there is a sufficient connection between the employment and the alleged conduct. A Social Media Policy, properly communicated to staff, can establish expectations and provide clarity.
“I’m just speaking my mind!”
In one recent case, an employee posted expletive comments on his personal Facebook profile (using his personal laptop and outside of office hours) regarding a purported error in his pay made by his employer. Importantly, the employee’s Facebook profile settings were set to ‘private’, so his posts were only available to his direct network. However, a number of people in his network were work colleagues, and the employee’s comments on Facebook came to the attention of management.
Following an investigation of his behaviour, the employee was dismissed.
The employee subsequently lodged a claim against his employer for unfair dismissal. In dismissing the employee’s claim, Fair Work Commission (FWC) said that the employee’s comments were threatening, offensive and in breach of his workplace’s sexual harassment and bullying policies.
In another case, an employee made a number of comments on Facebook regarding the business practices of his employers and criticised their approach to work. The employee also commented on a profile belonging to a work colleague, welcoming him to the workplace but making a number of derogatory remarks about the employer in the process.
The employer terminated the employee’s employment on the basis of serious misconduct, and the employee lodged an unfair dismissal claim with FWC.
The employee did not dispute the employer’s allegations, but stated that it was his time, his thoughts, and as he hadn’t identified himself as an employee of the employer: it had nothing to do with the employer at all. FWC, however, upheld the employee’s termination, as his conduct:
- seriously damaged the relationship between the employer and employee;
- damaged the employer’s interests;
- potentially damaged the relationship between the employee and other employees;
- was incompatible with his duty as an employee; and
- constituted serious misconduct.
Conversely, the Full Federal Court bench upheld a finding by FWC that an employee’s dismissal for his Facebook posts was unfair on the basis that there was no dedicated social media policy in the workplace.
Lessons for Employers
- Ensure all employees are aware that what they say in their own time can affect their employment – Whether at the pub or on social networking sites, their opinions can become a disciplinary matter if damaging to the employer’s reputation or destroy the employer’s confidence in them.
- Have proper procedures in place – There is no ‘one size fits all’ approach when it comes to potentially inappropriate behaviour online. Courts will look at each unfair dismissal claim on a case-by-case basis, so it is important that an employer’s reaction to purported breaches of workplace policy is conducted in the same manner.
- Distribute (and explain!) a social media policy – It is not enough to have a social media policy; an employer must also be able to demonstrate that the policy has been implemented and employees are aware of it and its content.