19 December 2017
Daniel McNamara, Graduate Associate
Some employers are grappling with a new phenomenon – the rise of online employee feedback platforms – where individuals can post anonymous ratings and comments about their workplace experiences, along similar lines to rating restaurants, hotels and service providers. Recently, the United Voice union organisation (under the pseudonym “Hospo Voice”), launched a website titled “Rate My Boss”. The website’s stated aim is to “turn the tables” on employment practices in the hospitality industry by enabling individuals to post anonymous ratings and comments on workplaces across Australia.
While it goes without saying that employers should ensure that the terms and conditions on which their employees are engaged comply with legislative standards, and that transparency around employment practices can be beneficial in circumstances involving potential exploitation of vulnerable workers, there are a number of implications that arise from such ratings systems.
A balancing act: implications for employees and employers
One difficulty arising from sites such as “Rate My Boss” is that the accuracy of posts is impossible to determine. Given the anonymity of the published reviews, this content may come from a disgruntled employee, but it could also emanate from a competitor or any other party, with little to no means of verifying their identity. To post an anonymous review about an organisation on “Rate My Boss”, all that is required is an email address or social media profile to create an account. A service such as this may disproportionately harm employers and businesses due to its lack of accountability and fact-checking mechanisms.
It is unlikely that an employer would want to engage publicly through the same median to respond to such comments, for example as a restaurant might do in response to an unfavourable review. However, an employer may want to respond internally to manage how this is perceived within the workplace, and to ensure that its grievance processes are accessible and working effectively so that the risk of externalising complaints is minimised.
An employee who posts unfavourable comments on an online platform such as “Rate My Boss” may be in breach of their employment contract as a duty of loyalty to the employer is implied as a matter of law in all employment contracts. In addition, workplace policies often regulate a range of employee behaviour that can have an impact on the business. Breaching such policies may result in an employee being subject to disciplinary action, and in some circumstances termination of employment may be warranted.
Posts made on “Rate My Boss” may also give rise to defamatory imputations that an employer can seek to pursue. To satisfy the defamation threshold, typically the content must be published, defamatory (i.e. not substantially true), and clearly identifies the employer/any other relevant party. However, corporations are generally excluded from pursuing defamation proceedings. This may prove to be problematic if a statement on “Rate My Boss” targets an organisation and not a “boss”. While alternative avenues may exist for corporations (such as a claim for injurious falsehood), this can be difficult to establish, and giving such claims a further airing through litigation may not be the most appropriate strategy.