When a “crude” Facebook post is not enough to justify dismissal

Sam Cahill, Associate

The Fair Work Commission has recently handed down a decision that highlights the need for employers to take a measured approach to disciplinary action in relation to an employee’s use of social media.

The Facts

Mr Colby was employed as a travelling salesman with LED Technologies Pty Ltd (the “Company”). The Company has approximately 20 employees.

In August 2016, during work hours, Mr Colby posted the following comment on his private Facebook account:

“I don’t have time for people’s arrogance. And your [sic] not always right! your position is useless, you don’t do anything all day how much of the bosses c**k did you suck to get were [sic] you are?”

The Company became aware of Mr Colby’s Facebook comment and formed the view that it was directed at the Company and/or its employees. Later on the same day, the Company advised Mr Colby over the phone that his employment was terminated. By that time, Mr Colby had removed the comment from Facebook and clarified, via a further post, that he had posted his initial comment in support of his mother, as he was concerned that she was being mistreated at her place of work. Mr Colby’s mother did not work for the Company.

The Decision

The key issue for determination was whether the Company had a “valid reason” to terminate Mr Colby’s employment. Importantly, the Company dismissed Mr Colby because it considered that his Facebook comments were offensive and directed at the Company and/or its employees.

While Commissioner Gregory agreed that the post was “crude” and “immature”, he found that Mr Colby’s conduct did not provide a valid reason for dismissal, as there was no evidence to suggest that the comments were directed at the Company or any of its employees. The only plausible explanation for the comment was the one that was provided by Mr Colby. In reaching this view, the Commissioner stated that it is not sufficient that the employer believed that it had a valid reason for termination; the reason must be “objectively valid”.

Commissioner Gregory went on to find that the absence of a valid reason rendered the dismissal unfair, and ordered that the Company pay $6,238 in compensation to Mr Colby. In reaching this decision, the Commissioner also considered the fact that the Company failed to provide Mr Colby with an opportunity to respond to the reason for dismissal, while noting that this failure was most likely due to the Company’s small size and lack of expertise in human resource management.

Lessons for Employers

  1. Crude comments by an employee on social media will not automatically provide a valid reason for dismissal where a non-work related social media account is involved.
  2. Employers need to make enquires regarding the suspected misconduct (including online conduct) and the surrounding circumstances, to determine whether it constitutes a valid reason for dismissal.The absence of a valid reason for dismissal will usually render a dismissal unfair.
  3. Giving an employee an opportunity to respond is a crucial step in responding to allegations of misconduct and in providing an employee with procedural fairness.

When employees’ social media activities impact on their employer

Jessica Anderson, Graduate Associate 

Social media has enhanced the opportunity for everyone to voice their opinions on a diverse range of subjects. But an employer does have at its disposal mechanisms to counter the publishing of content on social media by their employees that may be detrimental to it, even where this occurs outside of work or does not directly involve work matters.

In 2013, Army Reservist Bernard Gaynor published insulting comments on social media about a transgender officer and the “threat” of Islam. He also made comments criticising the federal government and a number of Australian Defence Force (ADF) policies. When asked to remove his posts, he refused. He was subsequently dismissed pursuant to the ADF’s power under Defence Force (Personnel) Regulations 2002 (Cth), which enabled the ADF to take disciplinary action to maintain the high standards of discipline required.

In 2015, Gaynor challenged this decision, claiming that his comments were protected by the implied constitutional right of freedom of political communication. While he was initially successful in his claim, the Full Court of the Federal Court’s recent decision upheld the ADF’s right to sack Gaynor over his extreme social media comments. The regulation used by the ADF to dismiss Gaynor was found not to be designed to control freedom of communications, but rather was directed at the suitability of individuals to remain as officers of the ADF. The Court also ruled that in any event the implied freedom of political communication was only a limitation on the exercise of legislative power, and did not apply to all terminations resulting from inappropriate social media comments.

While most employers do not operate under these types of regulations, employers are able to act with respect to social media comments that affect their interests, just as the ADF could act to protect its interests.

As such, we have put together some reminders to help employers find the appropriate balance between allowing employees to express themselves through social media and maintaining the interests of the employer.

The employer’s interests

Employees must be guided by the interests of the employer. These interests may include reputation, appropriate standards of behaviour, as well as the proper way of dealing with clients.They are representatives of the organisation and should be made aware of their responsibilities to uphold the organisation’s reputation and business interests

Social media policies

As an employer, you can restrict how your employees use social media, to the extent that is necessary to protect the interests of your organisation. It is helpful to tailor your social media policy to fit the nature of the organisation. For example, what types of public interactions are necessary for the functioning of your business? Do you use social media to attract potential clients?

Policies help to ensure that employees are aware of their responsibilities in expressing views online and the consequences that may flow from their actions. Policies should make clear that social media should not be used for the purposes of inappropriate workplace behaviour, such as bullying or harassment. Gaynor should have known that his comments breached a number of policies, but he refused to take down his posts, which is where the difficulty started.

The tech tips that are sometimes forgotten

Content should be considered permanent and searchable, and content intended to be private may be re-broadcast. Make it known to employees that content they post on social media may be associated with their employer. Employees are often searchable on the organisation’s website, or perhaps the first two hits on google when typing in someone’s name could be their LinkedIn account or their Twitter account. Whether intentional or not, employees are readily linked with their employer.

Online trolling and the workplace

 

The use of social media in the workplace is not only tolerated by employers, but is now often actively encouraged. With employees increasingly required to engage with social media platforms during the course of their duties, the risks associated with social media have also become a challenge for employers, including the presence of online trolls.

Online trolling is when someone posts inflammatory, extraneous or off topic messages in an online community with the intention of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion. Online trolling can also go as far as targeting individuals with explicit content or in extreme circumstances may even involve death threats to the individual.

Some commentators have suggested that employers offer social media “self-defence training” in light of online trolling. Other employers have implemented strategies to minimise the risks associated with online trolling through their policies and procedures.

What obligations does an employer have to protect their staff from trolling?

Employers have obligations under work health and safety legislation to ensure, so far as is reasonably practicable, the health and safety of workers, including their mental health. Online trolling poses a significant risk to employees in this respect if they work primarily or exclusively on social media platforms. Online trolling, by its very nature, is aimed at causing offence or provoking emotional responses. If an employee is exposed to these sorts of provocative messages and images without having the necessary support or training to deal with them, an employer may find that it is at risk of being in breach its obligations where an employee’s health or welfare is adversely affected by the trolling.

Steps to counter the effects of trolling 

Employers need to be aware of ways in which they can help minimise the risk of harm to an employee arising from online trolling, particularly for employees who are expected to use social media as part of their everyday duties. Some examples include:

  1. implementing social media self defence training [the Australian Broadcasting Commission is an example of an organisation that has rolled out social media training after a number of employees were trolled online];
  2. amending their social media policies to include the steps an employee should take to manage online trolls and an escalation process for dealing with threatening and abusive messages; and
  3. ensuring that employees understand when and how to respond to online trolls, particularly where representing the employer in their online interactions.

What if your employee is the online troll?

There have been some reports about victims of online trolling notifying the employer of the person engaged in the trolling about these activities. A recent high profile example was a hotel worker being terminated from his employment after Fairfax Media columnist Clementine Ford screenshot the abusive and offensive messages that he had sent to her and forwarded these on to his employer, Meriton. Meriton responded by conducting an investigation into the employee’s behaviour and subsequently terminating his employment.

If you would like assistance with reviewing or preparing social media and electronic communications policies, procedures or training, please contact a member of the PCS Legal Team on (02) 8094 3100.

​When does “unfriending” someone on Facebook amount to bullying?

A recent decision of the Fair Work Commission (“Commission”) has provided further guidance on what constitutes “bullying” under the new anti-bullying jurisdiction and sparked further debate about the interplay of online etiquette, workplace relationships and the law.

In Roberts v VIEW Launceston Pty Ltd [2015] FWC 6556, the Commission found that a director of the employer “unfriending” the applicant on Facebook formed part of a pattern of behaviour that amounted to bullying in the workplace, and which also included:

  • belittling and humiliating the applicant in front of third parties;
  • deliberately delaying performing administration work relevant to the applicant’s performance of her duties;
  • damaging the applicant’s reputation with one client;
  • ignoring the applicant and treating her differently to other employees; and
  • inappropriate comments about a possible same sex relationship which caused embarrassment to the applicant.

A copy of the decision can be found here.

In addition to providing further guidance on what is, and what is not, bullying, this decision provides another salient reminder for employers to ensure that their policies, and the training in relation to those policies, reflect the most recent developments in the law, and to reinforce with employees the potential consequences of their behaviour online for their employment.

This decision also highlights that just having a bullying policy in place will not be enough to prevent the Commission from making orders that bullying be stopped, and that employers need to not only demonstrate understanding of the behaviours that the policies are directed to preventing, but also act consistently with those policies.

The employer implemented a bullying policy after the incidents occurred and relied upon this to argue that there was no risk of bullying occurring in the future. However, the Commission found that the employer did not consider that any of the behaviour complained of constituted bullying, and therefore there was still a risk that the employee would continue to be bullied.

Whether or not “unfriending” another person on Facebook is the type of unreasonable behaviour that amounts to bullying in the workplace will depend on the circumstances of the matter – noting that there is a requirement for unreasonable behaviour to be repeated before the Commission can find that a worker has been bullied in the workplace, and make an order that the bullying stop.

PCS works with its clients closely to ensure that their behaviour and culture policies, including their bullying policies, are appropriate and reflect current best practice. PCS also provides training to ensure that employers and employees alike are aware of their rights and obligations under those policies.

5 steps to an effective social media policy

Regulation of the use of social media is increasingly important for employers as the line becomes blurred between where the workplace starts and stops and what is private and what is personal. Below are our top 5 tips for an effective social media policy that will increase protection for your organisation while avoiding claims that the policy unreasonably infringes upon an employee’s private life.

1. A social media policy should provide the foundations of a workplace culture which encourages positive use of social media through training and guidelines.

Social media is a part of doing business for most organisations. Imposing a blanket ban on social media use or setting unrealistic standards of behaviour which impact on an employee’s freedom of speech or privacy is not always achievable or desirable. A clear social media policy outlining what is and is not permitted is essential. Ensure that the social media policy is a working document that remains up-to-date with technological changes and training occurs regularly to ensure that employees are aware of their obligations.

2. Ensure that the policy expressly states that it applies to private use of social media.

Whether social media is used on an employee’s private computer, or when accessed remotely using an employer’s IT system, ensure that the policy clearly articulates that the policy extends to regulating the employee’s behaviour bother during and outside of work hours, to the extent in may have an impact on their employment or the organisation.

3. What happens on “tour”, stays on Facebook.

Anything that gets posted on social media is not truly private. It is not about where or when the behaviour occurs, but who the behaviour occurs in front of or with and whether the use of social media may bring the employer into disrepute.

4. Reinforce the policy through interactive training.

The effectiveness of any policy and strategy on social media is undermined without it being effectively communicated. In the context of unfair dismissal laws, a failure to have regular education and training on a policy could result in the dismissal for breach of the policy being found to be unfair.

Employers have the ability to discipline employees for conduct that is in breach of a workplace policy. A policy is there to be enforced and employers must make a conscious effort to implement the policy across the organisation. 

Do you want to introduce a social media policy in your organisation or do you have a social media policy that needs updating? Consider one of our Gold or Platinum Partnership Packages where your organisation can have 3 or more policies reviewed annually as part of one of our packages tailored to your organisation along with other inclusions such as discounts on litigation fees, discount on training fees and complimentary attendance at PCS webinars and events.   

The Perils of Social Media

Social media and the workplace is a topic of contention for employees and employers alike. Recent statistics confirm the prevalence and increased use of social media. According to social media news online, in Australia alone there are almost 14 million Facebook users, more than 3 million LinkedIn users and just fewer than 3 million Twitter users in Australia. A recent report by Sensis has revealed that 21% of employees use social media during their working day and 58% use it immediately after work. These statistics highlight the value and risks social media presents to employers.

One of the common issues that employers experience in relation to social media is that employees may see the workplace as an extension of their lives and comment on it as they see fit. There may be a blurring of lines between professionalism, colleague versus friendships and relationships. One of the challenges faced by employers is utilising the upsides of social media, including brand messaging and recruitment, but preventing employees from damaging the company’s reputation on social media. 

Ultimately the employer’s best form of protection is to educate their employees in relation to their internal policies on social media and to implement such policies. 

Tips for protecting the brand

  • Employers need to be very clear at a high level position on what their views are on social media. They need to decide whether social media is a platform that is very critical to their business needs. There needs to be an alignment of where they go with social media and what this translates into for employee usage.
  • If employees are going to be encouraged to use social media then it is highly imperative to ensure there is education and guidance round it.
  • Training and guidance on workplace behaviour and working relationships are vital for an organisation regardless of whether or not they allow social media usage.