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Social media: where does work end and life begin?

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What is social media?

The term “social media” is often used to describe websites that facilitate mass online communication. Such sites include Facebook, Myspace, LinkedIn and Twitter.

How has social media impacted on the workplace?

Social media has blurred the line between conduct in the workplace and conduct in a personal and social sphere.

The use of social media most often assumes relevance to the workplace when an employee or employees make negative comments via social media about an employer or workplace colleagues or reveal conduct or performance issues that are unacceptable.

An employee may in certain circumstances be disciplined or terminated for such conduct. Instances in which an employee’s postings on social media sites have resulted in disciplinary action being undertaken include:

  • A number of airline staff denigrating passengers and the airlines safety procedures on Facebook leading to damage to reputation of the airline and termination of staff;
  • An employee in Sydney being caught out taking a “sickie” in circumstances where he had posted on Facebook that he was actually “still trashed” from the night before (and had also unwisely given his boss access to his Facebook site as a “friend”) leading to threatened disciplinary action;
  • Prison guards in NSW denigrating senior Corrective Services officials on Facebook leading to threats of disciplinary action and the matter being referred to the NSW Industrial Relations Commission for resolution;
  • A health care professional posting a photograph of her workplace on Facebook complete with patients in their beds thereby infringing patient privacy and resulting in disciplinary action; and
  • A telecommunications employee setting up a fake Twitter account lampooning the Federal Broadband and Communications Minister resulting in the instigation of a disciplinary process.

Employers should note that just as social media can be used to “abuse” an employer or boss, it can be used to “abuse” a colleague. Such “abuse” has the potential to amount to bullying and harassment and become the subject of disciplinary action by an employer.

What should an employer consider prior to taking disciplinary action for social media infractions?

Where the conduct is such that an employer is considering disciplining or terminating an employee’s employment, a central consideration will be whether the online conduct occurs in the course of employment.

According to the Full Bench of the AIRC, conduct (i.e. out of work hours conduct) that does not occur in the course of employment will not allow an employer to claim that the conduct constitutes a valid reason for termination, if the conduct could have no effect on the employment relationship. Conduct may constitute a valid reason where it causes damage to the employer or its business.

Other issues an employer should consider include the following:

  • Whether the employee is identifiable online as an employee of the employer;
  • Whether the employee had been notified by the employer as to its expectations via a policy, and whether that policy had been consistently applied;
  • Whether the employee was actually responsible for posting the material or making the comment; and
  • Whether the material was publicly accessible or distributed widely.

What should an employer do to minimise the risk of negative social media issues arising?

Whilst employers may have policies that deal with the media, email and internet use, these policies should be tailored to specifically communicate to employees the employer’s expectations regarding the use of networking websites and the potential harm that could be caused to the business by the publishing of inappropriate conduct which could impact upon the employer.

For example, employers may wish to advise their employees that they are entitled to make their own private comments on a personal Facebook page or Twitter blog, provided that the comments do not have the potential to damage the employer’s reputation.

An employer could suggest that employees are not readily identifiable by name or profile as a representative of the employer’s business. This may avoid any public comment, whether of a personal nature or otherwise, affecting the employer’s reputation.

Should you have any questions in relation to the subject matter of this article please contact one of our Workplace Relations lawyers.