Can employers hold workers accountable over their social networking posts?
In the 21st century, social media is everywhere and each year, the number of users just keeps growing.
In January this year, almost 80% of the Australian population were active users on some form of social media platform – marking a 27% rise since 2015. As of 2020, Facebook was the most popular channel with 11.23 million users, followed by Linkedin with 11.21 million and Instagram with 9.7 million. All of these figures mean one thing – your employees are almost certainly on social media.
As a result, many employers have implemented a social media policy, setting out rules around using both personal and professional profiles, as well as consequences for unacceptable posts. Speaking to HRD, Carolyn Dorrian, workplace lawyer and founder of Dorrian & Co, said it’s vital for organisations to have a policy in place to limit their business risk. While not mandatory under Australian law, the Fair Work Commission will not look favourably upon an employer that dismisses an employee over an offensive social media post if a policy and the appropriate training is not first in place.
“Firstly, the policy should include rules and requirements for the way employees use social media, so for example it may have an express ban on discriminatory, sexist, racist, homophobic or bullying remarks,” Dorrian said. “It should include a large variety of applications like TikTok, Instagram, Facebook, Linkedin, and should be broad in its definition of social media because as time moves on, there'll be more variety of applications to come.”
Policies should also expressly prohibit the sharing of trade secrets that are not available to the public. Once a post is shared, it can be grabbed by other users and then become very difficult to remove from the internet.
Employers should also set out clear boundaries as to what constitutes personal and professional communication. If a client or a customer then becomes a friend on social media, employees must have a clear understanding of where those boundaries lie and that if they overstep the mark on a personal level, it may have professional ramifications.
Importantly, Dorrian said a policy must state the consequences of a breach, including the relevant disciplinary procedure, the potential for termination and for liability in the event of a defamatory post or the sharing of confidential information.
“Aside from the policy, employers should also implement some sort of training,” she said. “It can be a casual training scenario, a workshop or a roundtable underlining what is included in the policy, best practice, and what it means for the employer and employee. In the case of a dismissal, there needs to be a link to show the employee understands that a social media policy is in place.”
In the 2013 ruling involving Linfox Australia, the Fair Work Commission found an employee had been unfairly dismissed after posting “derogatory” comments on his Facebook page because the company did not have a social media policy in place. The company introduced a social media policy as a result.
In a separate case the following year, another Linfox employee brought an unfair dismissal case after being sacked over offensive social media comments. But in that case, the court upheld the dismissal, in part because a policy was in place and the employee had refused to sign it. These, and many other FWC cases, show the importance of social media policies in the world we’re living in today.
The FWC has resources such as policy templates available online to help employers navigate the tricky world of social media.
First, the employer should notify and sit down with the employee to discuss the post and how it has breached the policy, offer them a chance to respond, and explain the consequence. The resulting action must be appropriate to the seriousness of the policy breach and in some cases, that may include termination.
If so, Dorrian said employers must follow the Fair Work Commission’s procedure for lawfully dismissing an employee. She warned that if the social media post related to a bullying claim, it adds another layer of emotion and complexity which employers must consider. The employer must investigate all aspects of the bullying claim, whether it was known to management, how it was handled and whether that has played a part in leading to the policy breach.
When it comes to what the FWC will consider, it will look at the post objectively and ask: Has it caused serious damage to the relationship between the employer and the employee? Has it damaged the employer’s interest? And is it incompatible with the duty of an employee to the employer?
However, it is worth treading cautiously, especially over one-time breaches. Previous FWC cases have underlined the importance of a “big picture approach” when considering dismissing an employee, taking into consideration the employee’s length of service, their previous performance standard and whether any extenuating circumstances, such as their mental health, could’ve contributed.
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Under the New South Wales surveillance act, an employer may record or monitor an employee’s use of a work computer or device, but they must give 14 days’ notice. Similarly, before installing monitoring software on an employee’s work device, the employer must give 14 days’ notice.
It is important for employers to have clear policies in place around monitoring, whether it is an employee’s emails or internet browsing, and acceptable use of social media on work devices.
