16 December 2013
Erin Lynch, Associate
Employers are now all too aware of the extent to which not only their employees’ conduct but also their employees’ social media publications of conduct at work, at a staff Christmas event, or in an employee’s own time, can damage the employer’s brand and lead to legal ramifications.
Why should you regulate after-hours behaviour?
While many employers probably do not wish to involve themselves in employees’ out-of-work conduct, the legislative obligations which exist for employers as well as individuals (officers and employees alike) under both work health and safety and anti- discrimination legislation effectively require employers to regulate conduct that is connected with the workplace or with other workers.
The Sex Discrimination Act 1984 (Cth) (the “SD Act”) makes it unlawful for employees and other “workplace participants” to sexually harass each other at the workplace as well as for an employer to sexually harass an employee. The SD Act provides a broad definition of the “workplace” as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”. In circumstances where an employee is found to have sexually harassed another workplace participant, an employer who has prohibited unacceptable workplace behaviour at after hours events and has taken all reasonable steps to ensure this prohibition is understood and enforced will have a defence to a claim that the employer is vicariously liable for the acts of the employee.
Similarly, employers’ obligations to ensure, to the extent reasonably practicable, the health and safety of workers under work health and safety (“WHS”) legislation will apply if the after-hours event involves workers being “at work in the business or undertaking”. This duty also extends to ensuring that the “health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking”. If the after-hours conduct triggers this duty, then officers and “workers” (employees and a range of others) are also implicated as they have a duty to either, in the case of officers, exercise due diligence to ensure the employer complies with its duties or in the case of workers “(w)hile at work”, to take reasonable care of their own health and safety and to ensure their acts or omissions do not endanger the health or safety of others (and also to comply with policies and instructions). If an employer and/or an individual manager takes all reasonable steps to prohibit inappropriate out of hours conduct but is faced with a WHS investigation and/or prosecution arising out of another employee’s misbehaviour it will be well placed to defend any prosecution.
As observed in a Commission decision, it is “becoming common for employees to express displeasure about their employers or co-workers on Facebook and other social networking sites and what might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people”.1
According to PCS consultant Greg Harrison (former Commissioner of what is now the Commission) “to regulate the use of social media outside the work context effectively, it is appropriate to implement and maintain a social media policy that sets out clear boundaries”.
The effectiveness of a well-thought- out and well-drafted social media policy is demonstrated in a case involving the ACT Department of Education and Training.2 The case involved a school teacher who allegedly breached the Department’s Directions on the use of social networking sites and the Teacher’s Code of Practice, by allowing students to be “Facebook friends” and then being untruthful when questioned about her Facebook account.
It was found that the applicant accepted a number of students as friends on her Facebook account, the applicant was aware that they were students and further, was aware that her actions were contrary to the Code of Practice and the Department’s Directions. The decision confirmed that the reduction of the applicant’s salary by one increment and the reiteration of a final warning should stand.
PCS recommends employers assess the ways that their employees use social media, particularly as we enter the “silly season” and review social media policies currently in place and, in particular, how broadly these policies extend.
How can you regulate the behaviour?
The regulation of appropriate, or inappropriate, after-hours workplace behaviour may be contained within any workplace behaviour policy or policy on social media (as discussed above), sexual harassment, discrimination or bullying because whether it occurs during or after work hours, the types of unacceptable behaviour will be the same and should be treated accordingly.