18 August Social media mishaps: Regulating an employee's posts August 18, 2017 By Reef Admin Unfair dismissal 0 More and more, industrial tribunals are being called upon to consider the nexus between social media posts and an employee's work where the employee has been terminated by the employer. Decided cases demonstrate that the relative vulgarity of an employee’s online conduct will not, of itself, determine legal risk. Importantly, the wider circumstances must be considered before any action can be safely taken by the employer in response to an employee’s social media activity – and this is rarely a straightforward assessment. Considerations Regardless of any personal moral reaction the employer may have to an employee’s inappropriate online conduct, when determining whether to take action against the employee they should consider: Is there a sufficient connection to the employee’s work or the business, so the employer can be identified or their reputation damaged? Were the comments made publicly? Is there a breach of the law? (e.g. discrimination, harassment, bullying etc) Is there a breach of a policy that has been communicated to the employee? Social media policy Employers can minimise the risks associated with social media by implementing and maintaining a social media policy outlining what is and is not permitted. This is crucial to ensure clarity for employees around your expectations. The social media policy should set standards for the use of social media during working hours. But having a social media policy that imposes a blanket ban or sets unrealistic standards isn’t always desirable, particularly given the prevalence of personal electronic devices in the workplace. And often, as an employer, you may want to use social media for brand messaging, recruitment or to build awareness of your business. Employees must be made aware of any social media policy that’s in place at your agency. The policy should be a working document that’s regularly updated to keep pace with the latest technological changes. Finally, the social media policy should be enforced when the need arises. Employers who don’t follow through when disciplining employees who breach the policy run the risk of undermining the credibility of the policy. Deciding the (Facebook) facts Here’s how the Fair Work Commission has decided a number of cases involving alleged inappropriate online 1conduct by an employee. An employee posted: “Xmas bonus alongside a job warning, followed by no holiday pay!! Whooooo! The hair dressing industry rocks man!!!! AWESOME!!!” The Fair Work Commission found that this Facebook post did not give rise to a valid reason for dismissal because the comments did not directly refer to the employer and did not damage the employer’s business. An employee posted: “how the f*** work can be so f******** useless and mess up my pay again. C***s are going down tomorrow.” This Facebook post was found by the Fair Work Commission to amount to serious misconduct because it directly threatened other work employees and therefore had a sufficient connection to work. An employee’s public Facebook profile made reference to a Muslim colleague as a “bacon hater” and contained other comments about Muslims. The Fair Work Commission said the comments were “distasteful”, “uncomplimentary” and “disgusting”, but despite this found that they did not constitute a valid reason for dismissal – particularly given the absence of a social media policy. The Commission’s decision was upheld on appeal. An employee posted: “On behalf of all the staff at [employer’s name] I would like to welcome our newest victim of butt rape. I’m looking forward to sexually harassing you behind the stationery cupboard big boy.” The Fair Work Commission found that this Facebook post constituted a valid reason for dismissal, given that the “grossly offensive post conveyed lurid sexual suggestions, could be seen by everyone and was purportedly sent on behalf of all staff”. An aviation ground employee posted: “We all support ISIS.” Given that an adequate enquiry would have indicated that the Facebook post was sarcastic and made in error, the Fair Work Commission found that it did not constitute a valid reason for dismissal. Need help? Members can download a template social media policy from the REEF People Management System. The policy has recently been updated to ensure it complies with current standards. You can simply adopt the template policy in full. Alternatively, if the policy doesn’t suit your particular circumstances, you can modify it. If you’d like to discuss your social media policy or any other workplace policy, or need help developing and implementing a particular policy that’s not available via the People Management System, please call 1300 616 170 or email firstname.lastname@example.org Related Challenging an employee's post-employment conduct Before challenging a former employee's post-employment conduct, you have to be sure your own house is in order. One employer found out the hard way. Keeping post-employment restraints intact Enforcing a post-employment restraint can be extremely complex – and expensive! Matthew Robinson provides tips to help members through the process and maximise their chances of success. Do you need to include personal/carer's leave on pay slips? The REEF advice team recently received an interesting question about whether an employee's personal/carer's leave balance needs to appear on their pay slip. Guesswork, be gone! 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