The use and misuse of social media in Australian workplaces and among members of the legal profession is an area of emerging jurisprudence and has been the source of several interesting recent decisions. The decisions discussed in detail below highlight the need for caution amongst users.
Background
Mr Stutsel was employed by Linfox Australia Pty Ltd (the Company) as a truck driver. On 31 May 2011, Mr Stutsel’s employment was terminated on the grounds of serious misconduct following several comments Mr Stutsel posted on his Facebook page regarding other employees of the Company. The comments posted were described by the court as ”offensive, derogatory and discriminatory, and included suggestions of dishonest and underhanded conduct, and comments of sexual misconduct”.1
Application at first instance
At the first instance, Mr Stutsel successfully applied to the Commissioner pursuant to s 394 of the Fair Work Act 2009 (Cth) and sought remedies for unfair dismissal.
The Commissioner made several findings on the evidence provided by the parties, including (amongst other things) that when the comments were read as a whole the conversation was comparable to ”a group of friends letting off steam and trying to outdo one another in being outrageous” and to ”a conversation in a pub or café, although conducted in an electronic format”.2
The Commissioner also found that:
The Company did not have a policy on the use of social media by employees. In an era in which many companies have detailed social media policies, the parts of the induction training material and handbook upon which the Company relied were not adequate to ground the action taken against the Applicant.3
The appeal
The Company unsuccessfully appealed and submitted that the Commissioner relied on irrelevant considerations and gave insufficient consideration to the relevant facts. In its decision, the Court found that dismissal was harsh, unjust or unreasonable when considered against the special circumstances of the case (in particular the nature of the comments, the limited understanding of Mr Stutsel as to the privacy settings of his Facebook page and Mr Stutsel’s long term of employment).
The fact that the conversations were conducted in electronic form and on Facebook gave the comments a different characteristic and a potentially wider circulation than a pub discussion… this was a wide audience and one which included employees of the Company... Unlike conversations in a pub or café, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees.4
This case acts as a reminder of the importance of effective policies and procedures in relation to social media in the workplace. An effective and well implemented policy will act as a risk management tool against potential claims.
An effective social media policy might include:
David Harris
Barrister David Harris faced the Disciplinary Tribunal in the United Kingdom for several offences while appearing as counsel in Twentieth Century Fox Film Corpn and others v Newzbin Ltd [2010] EWHC 608 (Ch) in the Chancery Division of the High Court. It later transpired that Mr Harris failed to disclose that he owned 100% of the issued share capital of Newzbin (a website which allowed users to download films illegally).
Mr Harris, using the pseudonym “Geeklawyer”, posted a series of inappropriate and insulting comments on his Twitter account during the proceedings including “oops. Looks like I admitted something I should have denied. Oh. Dear. Me.: (Gonna catch it in the neck for that)” and “wondering if I can hire a hooker for the judge or rent-boy. Oooh. How do I find out his preference? Could just ask I guess.”
Mr Harris was found by the Tribunal to have engaged in conduct which was likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute and was subsequently disbarred for his behavior.
Lavan Legal comment
Initially only intended to be used for social purposes, social media websites such as Facebook and Twitter are now regarded as important marketing and commercial tools for businesses and are used as an integral part of our communication with others. Comments posted by users are easily accessible to the general public and have landed many people in hot water with their employers or their professional disciplinary bodies. The situations described above act as a reminder to users to be aware of their social media habits and to employers to have an effective and adaptive social media policy in place.
1 Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097 at 53.
2 Ibid at 56.
3 Ibid at 55.
4 Ibid at 61.
