The use of social media has revolutionised the way people communicate with each other. The use of social media in the workplace or about the workplace has also seen significant changes, which along the way have created new pitfalls for employers to deal with.
Regulating the use of social media by employees
Some cases before the Fair Work Commission (FWC) or Fair Work Australia (as previously named) have involved the inappropriate use of social media in the workplace by employees. One such case was Stutsel v Linfox Australia Pty Ltd, in which Stutsel made remarks on Facebook about fellow employees with racist and sexual connotations. FWC rejected the suggestion that such postings on social media mediums by employees in their private capacity and outside of work hours were the equivalent to a chat between workers at the pub or “water cooler talk”. FWC said that such postings on social media leave a permanent written record and have the potential to be published to the general public. FWC also noted that it would be increasingly difficult for employees to claim that they were ignorant or oblivious of the fact these “private” comments may enter the public domain. The decision highlights the need for employers to proactively manage social media in the workplace by being aware of their potential use by employees to bully, harass or discriminate against each other and as a consequence, to ensure that appropriate policies are in place to regulate the use of social media both in the workplace and outside work hours. In this particular case, Stutsel was re-instated to his job because Linfox did not have a dedicated social media policy at the time the offending posts were made with FWC therefore finding, that Linfox did not have a proper basis on which to terminate Stutsel.
In the similar FWC matter of O’Connor v Outdoor Creations Pty Ltd, Outdoor Creations dismissed O’Connor because he had made more than 3000 comments on Google Mail’s chat service in three months whilst at work. Outdoor Creations however was unsuccessful in its defence of the unfair dismissal proceedings because it could not show that all the comments were made during work hours. However, the need to prove that the postings were made during work hours may have been avoided if Outdoor Creations had in place an effective social media and internet policy at the time of the conduct.
Minimising risk with the use of social media
When regulating the personal use of social media by employees, it is clear from the FWC decisions that it is imperative for employers to have a clear and detailed social media policy. Employers should ensure such policies are understood and employees are aware of the consequences of breaching these policies. The policies may extend to regulating the use of corporate social media accounts, which might involve comments made on behalf of the employer or about the employer.
