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The Rise of Social Media Issues in Employment

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By Chao Ni, Lawyer, Workplace Relations, Mason Sier Turnbull

Social media has infiltrated our personal lives in every area imaginable.  What we don’t seem to take notice of is the impact it can have on our workplaces and employment relationships.

Cases involving dismissal of employees over misuse of social media are being considered by Fair Work Australia (FWA). These cases are quickly forming a new body of laws specifically addressing the rights and obligations of both employers and employees with respect to the use of social media.

What is Social Media?

Social media may be defined as “a group of internet-based applications that allow the creation and exchange of user generated content.”[1]

Facebook, by and large the largest and most prevalent social media application, has more than 850 million users world-wide, including over 11 million Australian users.  This means one out of every two Australians use Facebook.

What potential damage can be caused by Social Media?

There are obvious adverse consequences for businesses that may be named or subject to complaints posted on social media by a user.  Business goodwill and reputation can take years to build, and hours to destroy, thanks to social media.

The ability to easily copy, distribute and comment on content posted via social media means that no businesses are safe from “online persecution” by internet users, leading to real and serious financial consequences.

Failing to monitor and act on social media content may lead to liability for employers under various laws referred to below.

Conduct outside of work hours

Courts recognise that an employer has the right to discipline employees for conduct outside of working hours[2], if such misconduct:

  • is likely to cause serious damage to the relationship between the employer and employee;
  • damages the employer’s business interests; or
  • is incompatible with the employee’s duty as an employee.

This general principle has been referred to in cases involving employees, after having been incensed by their employer’s actions, venting their anguish through social media.

Cases include:

  • Dover-Ray v Real Insurance Pty Ltd[3]: Employee posted a particularly scornful blog entry on her MySpace page after the conclusion of a workplace investigation into her allegations of sexual harassment.  She labeled her employer “witch hunters” and accused it of “chasing dollars over safety”.  The failure to remove the blog entry after a request by the employer was found by FWA to be a valid reason for termination.
  • O’Keefe v Williams Muir’s Pty Limited[4]: Employee posted a Facebook status littered with profanities directed at his employer’s payroll staff for paying him an incorrect sum of wages.  FWA found that “while it is accepted that the applicant was frustrated by his unresolved pay issues, the manner in which he ultimately dealt with the issue warranted his dismissal for misconduct.”
  • Stutsel v Linfox[5]: Employee posted racially and sexually derogatory comments about his managers on Facebook.  FWA found subsequent termination to be unfair dismissal, taking into account the employee’s extremely good employment record over some 22 years, his age and his employment prospects.
  • Fitzgerald v Smith[6]: Employee posted on her Facebook status “Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!”  FWA found subsequent termination to be unfair dismissal, taking into account the employee’s changed conduct after the employer notified her of the problems.

Social media has also been adopted by employers (and lawyers alike) as a rich medium of evidence gathering to be used against misconducting employees.

Cases include:

  • Dekort v Johns River Tavern[7]: Employee applied for sick leave early in the new year of 2010.  The employee was dismissed after his boss found a photograph from a Facebook page showing the employee participating in New Year’s Eve Celebrations.  FWA dismissed the employee’s unfair dismissal application on the basis that the application has no prospect of success.
  • Mayberry v Kijani Investments[8]: In an unfair dismissal case, the applicant was summarily dismissed because the employer saw a photograph on Facebook depicting the applicant in a ‘cardboard car’ made from work materials behind a service counter. The photo was posted to the site by a former employee.  FWA found in favour of the applicant because the employer did not demonstrate any damage to the business and notably, the applicant did not post the photograph on Facebook. There may have been a valid reason for termination of employment with notice if the employer had taken steps to investigate the allegation that the applicant misused employer property.

Do privacy settings protect the employee?

Courts have held that social media interaction is not private interaction and that privacy settings do not provide users legal protection against employer action.

In Fitzgerald v Smith, Commissioner Bissett stated:

“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. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.”

What constitutes misconduct through Social Media misuse?

Based on Court decisions to date, the question of misconduct and whether dismissal is unfair depends entirely on the specific facts of the case.

It is a question of degree as to whether an employee’s misuse of social media gives rise to a valid reason for dismissal.

Additional factors, not relating to the actual social media misuse, may affect the outcome of a dispute, such as:

  • the employer’s actions subsequent to discovering the misconduct;
  • the employee’s record of service;
  • the nature of the employee’s complaint;
  • whether the disciplinary measure taken by the employer is proportionate to the misconduct; and
  • whether the employer has communicated its social media policy to the employee.

Related issues

As further food for thought, the following areas of laws may be directly relevant to social media use:

  • OHS laws (employer failing to investigate cyber bullying);
  • Unfair dismissal laws (termination of employment that is harsh, unjust or unreasonable);
  • General protections  laws (adverse treatment of an employee because the employee has made a complaint over a social media platform regarding a workplace right);
  • Equal employment opportunity and anti-discrimination laws (employer discriminating against potential employee or existing employees based on social media content);
  • Defamation laws (current or ex-employees defaming the employer through social media publications); and
  • Advertising codes of conduct and practices (employers failing to monitor their own social media publications for unlawful content).

It is strongly recommended that employers obtain legal advice before acting on social media misuse by employees.

MST Lawyers has extensive experience in assisting its clients with complying with the most current workplace relations laws, including advice relating to workplace discrimination.  Please contact our Workplace Relations Principal, Herb Fischbacher, on 03 8540 0200 or herb@mst.com.au for further information.

 


[1] Andreas Kaplan, Professor of Marketing at the ESCP Europe Business School

[2] Rose v Telstra Corporation Ltd [1998] IRCommA 1592.

[3] Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544.

[4] Mr Damian O’Keefe v Williams Muir’s Pty Limited T/A troy Williams The Good Guys [2011] FWA 5311.

[5] Glen Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444.

[6] Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358.

[7] Dekort v Johns River Tavern Pty Ltd T/A Blacksmiths Inn Tavern [2010] FWA 3389.

[8] Ms Lee Mayberry v Kijani Investments Pty Ltd ATF The Dawe Investments Trust Subway Wallsend T/A Subway [2011] FWA 3496.