17 December 2012
Nichola Constant, Director and Misa Han, Graduate Associate
With over 10 million Facebook users in Australia, it comes as no surprise that social media is as integral to workplace interaction as “water-cooler talk”. While social media channels such as Facebook posts, Twitter accounts and LinkedIn groups offer quick and easy ways to promote business and networking, they could also present headaches for employers.
In particular, employers now face the challenge of balancing bullying, harassment and brand damage risks with the need to respect employees’ privacy.
Facebook Comment = Pubtalk?
People have always talked about their work and colleagues after hours with friends and family. However, the digital era and social media mean that it is increasingly hard to distinguish between professional and personal conduct.
In the recent Linfox case1, a truck driver was dismissed after posting derogatory statements about his managers outside of his work hours. The Full Bench of Fair Work Australia upheld a finding that Linfox unfairly dismissed the employee and ordered reinstatement and payment of lost wages.
Even though this case was decided in favour of the employee, the case paves the way for employers to dismiss employees for posting inappropriate comments on social networking sites. The Full Bench noted that posting on Facebook is not equivalent to a conversation in a pub or café, as Facebook conversations leave a permanent written record and have a potentially wider circulation than a pub discussion. The Full Bench said that it was important for employees to exercise considerable care in using social networking sites to make comments about their managers or colleagues.
Ultimately detrimental to Linfox’s case was that it did not have a policy on social media and unsuccessfully sought to rely on induction training materials instead.
In light of this case, it will be increasingly dif cult for employees to hide behind ignorance to justify inappropriate comments posted online. However, employers must still actively manage the risks of social media use, including bullying, harassment and discrimination claims and ensure they have appropriate policies and training in place.
Maintaining Corporate Reputation
Employers are regularly warned about potential brand damage from employees’ misuse of social media. In an interesting example of potential brand damage by an employee Telstra discovered that this misuse can extend beyond criticism of the employer, after an employee pretended to be the Communications Minister. The employee set up a satirical Twitter account and pretended to be Stephen Conroy attacking Telstra. Telstra initially attempted to cover up the impersonator and his public attacks. However, Telstra realised a cover-up was not possible and admitted its employee’s behaviour.
Following this, Telstra implemented a new policy on social media. Telstra did not seek to ban social media as it considered that approach to be counterproductive. Instead, Telstra decided to encourage employees to promote the company, disclose that they are Telstra employees and to ensure information shared is accurate.
In the UK case of Crisp v Apple Retail2, Mr Crisp (an Apple Retail employee) posted a series of Facebook comments about Apple products, including his iPhone having no signal and an Apple application not working properly. He also posted disparaging comments about his work using one of iTunes’ advertising taglines. Apple Retail dismissed Mr Crisp for bringing the company into disrepute and striking at the core of Apple’s values.
The UK employment tribunal found that Mr Crisp’s comments about Apple products could amount to misconduct, corporate image was important to Apple’s business, and Apple was justified in terminating Mr Crisp’s employment. Although access to Mr Crisp’s posts was limited to his Facebook friends, the nature of Facebook, and the Internet generally, meant comments by one person could easily be forwarded onto the others.
This UK case recognises employers have the right to dismiss an employee when the employee deliberately damages the organisation’s corporate image. We strongly recommend in Australia that employers record this right in employees’ contracts of employment and social media policies.
Privacy and Social Media: A Balancing Act
It has become common practice for prospective employers to scan social media profiles of candidates. Some employers have gone so far as to ask job applicants for passwords, to ‘friend’ the HR manager, and to log into their profile during an interview, and required prospective employees to sign non-disparagement agreements banning them from posting negative comments about the employer before formally offering the position. But how far is too far?
In 2011, the Financial Sector Union (“FSU”) expressed concerns about the Commonwealth Bank’s social media policy impinging too far into the private lives of employees. The FSU claimed that the Bank’s policy exceeded the employees’ contractual obligations and duties of good faith. The Commonwealth Bank revised its social media policy to address some of the employees’ concerns.
This suggests that imposing restrictive requirements on social media use is likely not only to trigger individual negativity, but possibly industrial action, as well as potentially breaching privacy and employment laws.
These recent high profile cases suggest that employers may need to rethink their social media management and as in most employment matters, balance is the key.
The ‘hands-off’ approach may not be sufficient to protect employers from bullying and harassment risks or to protect the corporate image, while taking a ‘Big Brother’ approach is likely to trigger negative reactions from the employees. Employers should instead focus on building a positive workplace culture that recognises the realities of employees connecting through the new media and give employees the skills and direction to utilise social media for mutual benefit.
- Linfox v Stutsel  FWAFB 7097
- Crisp v Apple Retail (UK) Ltd ET/1500258/11