Chris Oliver, Director 

A quick review of both traditional and new forms of media provides a clear indication that employers of all sizes continue to struggle with the intersection between the interests of the business, and an employee’s use of social media. So why does this struggle continue? While its form is undoubtedly still expanding, the existence of social media is not new. Indeed, it has been part of the social and work landscape now for over a decade. Employers also have experience in overcoming the challenges presented by the introduction into the workplace of earlier waves of technology advancement, such as photocopiers, facsimile machines, email, the internet and mobile phones.

Perhaps, at least for some, the continued struggle arises as a consequence of the way in which resistance by employees to the imposition of limits on their social media usage is framed – that their posts are “private”, were undertaken outside of work hours, and involve the exercise of their perceived “right” to freedom of speech. By confronting these potential roadblocks, employers are better placed to manage the risks with greater confidence, and give their employees greater clarity as to what is and is not acceptable social media usage. After all, prevention is always better than the cure.

“Private” posts

Despite the common reliance on this claim, an employee’s use of social media rarely remains in any sort of “private” domain. It ceases to be private and intersects with the interests of the employer in a range of situations, including:

• where material is posted that directly ‘tags’ or references one or more co-workers;
• using a social media account which expressly identifies their employer;
• posting material which names or otherwise identifies the employer (including posting material in which the employee is wearing the uniform of the employer);
• posting material which is inconsistent with the ‘values’ or objectives of the employer’s business;
• posting material of an inappropriate nature to co-workers; and
• posting that involves the use of devices or other facilities supplied by the employer.

Undertaken outside working hours

The rights of an employer to manage out of hours conduct was addressed by the Full Bench of the then Australian Industrial Relations Commission in Rose v Telstra¹, where the Commission confirmed that employers do have the capacity to regulate the out of hours conduct of their employees where the conduct:

• viewed objectively, is likely to cause serious damage to the relationship between the employer and the employee;
• damages the employer’s interests; or
• is incompatible with the employee’s duties as an employee.

Freedom of speech

It may come as a surprise to many, but there is currently no legal “right” to freedom of speech in Australia. The common response that an employee is exercising their freedom of speech in the context of social media was addressed in the unfair dismissal case of Little v Credit Corporate Group Limited², where the Fair Work Commission stated “…the Applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability”.

While in a disciplinary context these three dimensions will ultimately be determined by the specific circumstances, they also provide a framework in which to proactively manage the use of social media and to make clear to employees what is expected of them.

Proactive Management

An important foundation in the proactive management of the social media activity of employees is the publishing of, training in, and promotion of, an appropriate and comprehensive Social Media Policy. While the design of the policy will often depend on a variety of issues (including the identified values and culture of the organisation, the industry in which the organisation operates and the organisation’s business objectives as they develop over time), all Social Media Policies need to cover off on a number of key elements. These include:

• the scope and application of the policy (including situations where the employee is using the employer’s computer, internet facilities, network, or time);
• the expectation that an employee should not assume that content is private, or will be kept private, irrespective of the privacy settings the employee has chosen;
• clearly stating that the employee will be held responsible for anything they post on social media, including if that content is shared or reposted by others;
• content should always be considered permanent and searchable – irrespective of the social media platform on which it is placed;
• convey to employees that they should always assume that they can be identified and their association with the employer will be apparent to anyone who reads the content; and
• clearly identifying the range of content and activities that is unacceptable, including specific examples wherever possible.

Managing Social Media Fallout

There are at least two key focal points to dealing with social media fallout – managing the employee as the publisher of the material, and managing the impact of the publication on others.

Managing the publisher

The manner in which an employer will deal with a current employee whose use of social media has collided with the interests of the company will generally depend on a range of factors, including the circumstances in which the post or publication occurred (such as the time of day, use of company resources or otherwise, and content), and any terms of the employee’s contract of employment. These factors also include not only the existence of an appropriate Social Media policy, but the extent to which the company can demonstrate that the employee was made aware of the policy and trained in its terms.

Assuming the employer intends to deal with the social media post as a potential disciplinary matter, it is essential that:

• the employer keeps a cool head, and avoids making any assumptions (including with respect to the employee’s intentions or the imputed messaging behind ambiguous posts);
• any relevant circumstances are promptly and thoroughly investigated;
• the employer adopts a process that ensures the employee is given a reasonable opportunity to both understand the concerns, and to respond to them; and
• all of the circumstances are taken into consideration before deciding what, if any, disciplinary action should follow.

Caution should be exercised to ensure that time pressures and the emotional drain of managing the outward looking aspects of the situation (eg dealing with any third party or external communications), does not inappropriately impact on the manner and process for addressing the conduct of the individual employee in question.

Managing everyone else

In the face of social media fallout, the common and arguably natural reaction of many employers is to respond quickly, and aggressively. While each situation needs to be assessed on its merits, organisations should at least pause and reflect on the following:

• why am I responding, and what do I hope to achieve by doing so?;
• who am I responding to, and will my means and messaging reach them?;
• in a fast-paced news cycle, by the time I get around to responding, will the rest of the world have moved on?;
• am I comfortable with the flow on effects of my response? Am I helping close things out or am I just giving this oxygen?;
• am I maintaining or surrendering the moral high ground in both the terms and manner of my proposed response?; and
• can I turn this into a positive?

1. (1998) AIRC 1592.
2. (2013) FWC 9642.