No more 'foxing' on social media - tips for employers and employees

‘It was inevitable with the seismic shift to the phenomenon of social media as a means of widespread instantaneous communication, that it would lead to new issues in the workplace’:  Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642 at [67].

Recent decisions on social media highlight the dangers for an employee’s ongoing employment if they use social media to make adverse comment on their employer, the business and fellow employees. 

However, employers cannot be overly sensitive.  Some communications on social media may be trifling or part of an industrial activity giving rise to workplace rights.  Such a dismissal could lead to potential exposure to an adverse action claim.

Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444; [2012] FWAFB 7097

Mr Stutsel was a union delegate who used Facebook to make inappropriate and derogatory remarks about a manager that ‘many…would find…distasteful’.  Mr Stutsel was dismissed by Linfox.  However, the Commissioner said the comments were private views, shared between a group of work colleagues, which was like ‘a conversation in a pub or café’.  Mr Stutsel got his job back.

Linfox appealed, unsuccessfully.  The Full Bench disagreed with the Commissioner, saying that comments on social media are different to private comments at a pub.  However, the Full Bench said that Mr Stutsel’s dismissal was harsh given his senior age, length of service and ignorance of social media.  But the Full Bench warned:

It is also apparent that, with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of these factors [like age and ignorance] may be given less weight in future cases. 

Banerji v Bowles [2013] FCCA 1052

Ms Banerji, a public servant, established a Twitter account using an alias Twitter handle.  Under that disguise, Ms Banerji made comments critical of her employer, fellow employees, the Government, the Opposition and the then Prime Minister.  Once discovered, Ms Banerji’s ongoing employment was questioned.

Ms Banerji sought to stop the disciplinary process.  She argued that as the comments tweeted by her were made on her own time out of work, any disciplinary action would infringe her constitutionally protected right to engage in political communication.  The Court rejected her argument and said that any right to communicate on political matters ‘does not provide a licence … to breach a contract of employment’.  Ms Banerji had to comply with the Public Service Act and the Code of Conduct that required her to ‘behave in a way that upholds the good reputation of Australia’ and ‘behave honestly and with integrity’.

Little v Credit Corp Group Limited [2013] FWC 9642

This case involved a young employee criticising a client and making sexually suggestive comments about a new employee via social media.  The employee pleaded ignorance but the Commission placed the blame on the employee, taking up the warning of the Full Bench in Linfox: 

‘[f]or a young person who seemingly frequently used Facebook, it strikes me as highly implausible that he was incapable of adjusting privacy settings’. 

Then in response to a defence that the offending comments were outside of work hours, it was said ‘it was not when the comments were made which is important, but the effect and impact of those comments on [the employer], its other employees and on the new employee’. 

Employees are warned:  the work and home divide is of less importance given the nature and reach of social media.

Pearson v Linfox Australia Pty Ltd [2014] FWC 446

Linfox was again taking issue with employees and social media.  This time, an employee was dismissed on grounds that included his refusal to acknowledge Linfox’s social media policy because he believed it infringed on his private life.

The Commission rightly held that a social media policy cannot be restricted to only operate “at work”.  A social media policy can seek to prevent employees damaging the business or releasing confidential information whether the employee engages in that behaviour at work or outside of work.  The Commissioner said:

… in an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business.  It also serves a useful purpose by making clear to employees what is expected of them.

The employee’s dismissal was upheld.

Wilkinson-Reed v Launtoy Pty Ltd [2014] FWC 644

In this case, the employee was dismissed for a private conversation on Facebook where the employee conveyed to the business owner’s estranged wife the sentiment that everyone at the workplace thought the owner was a ‘tosser’.  The owner saw the message when he was secretly using the ex-wife’s password to spy on her account.  The employee’s comments were not a public post on the Facebook wall but a private message.  Unsurprisingly, the employee’s dismissal was found to be unfair and she was awarded compensation.

Tips for employers

Employers can take a strong stand on the use of social media.  We recommend:

• establishing robust guidelines/policy on the use of social media backed up by a contractual clause on social media;

• educating and training employees on the dangers and reach of social media;  and

• holding employees to account for the misuse of social media.

Needless to say, the new workplace bullying laws could also reach to capture cyber bullying (which can easily come into the workplace).  This potential only serves to highlight the importance of a thorough and holistic approach to regulating social media use by employees.

Author: James Mattson