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Two social media dismissals, two different FWC outcomes - why?

Social media use by employees continues to present unique challenges to employers.

Striking a balance between acceptable and excessive social media use by employees is not always an easy task.

As two recent social media dismissal cases[1] show, the circumstances of social media misuse continue to surprise.

However in both instances, useful guidance is being provided by the industrial umpire on social media use in the workplace, social media policies and appropriate discipline for breaches.

Case 1: FWC supports employer’s right to control out of hours social media usage

Picture this. You’ve asked an employee to sign your organisation’s social media policy but he refuses and says:

“… you do not pay me or control my life outside of my working hours, you cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech…”

What would you do?

That was a situation recently faced by an employer which ultimately led to a Fair Work Commission unfair dismissal hearing.

The employer in question, Linfox, dismissed an employee in May 2013 for refusing to sign his employer’s social media policy on more than one occasion, in conjunction with three other alleged breaches of workplace policy and procedure.

As well as objecting to the control of his out of hours conduct, the employee also alleged the employer was biased towards him by singling him out and its workplace investigation was a “set up” to get rid of him.

In handing down a decision in support of the employer’s dismissal action, the FWC issued a sobering warning for social media misusers who claim ignorance to its effects.

“Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only.

An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees”

The FWC accepted the legitimacy of the employer’s desire to have a policy in place about the use of social media by employees and commented that:

“…the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business”

Editor’s update: Subsequent to the original FWC decision, the dismissed worker (Mr Pearson) lodged an appeal with the Full Bench of the FWC. By decision of 19 March 2014[2] the Full Bench refused Mr Pearson’s application for permission to appeal.

 

Case 2: Employee’s Facebook use didnot breach workplace policy

The above discussed decision is to be contrasted with another dismissal case about an HR manager (with a respected work record) who was summarily dismissed in August 2013 for her comments on Facebook.

Her employer (a car dealership) claimed that derogatory comments by the (dismissed) HR Manager (about the dealership’s Principal to his estranged wife) on Facebook’s private messaging service had breached the organisation’s social media policy.

It argued that the conversation disclosed confidential information, breached the standard of trust and confidence in the employment relationship and that the employee failed to act in good faith.

In one Facebook conversation between the HR Manager and the estranged wife (with whom she also had a friendship), the HR Manager commented that she was informed that the Dealer Principal was called a “tosser” “by most in the vehicle world”.

In examining the totality of the Facebook comments, the FWC accepted that aspects of the HR Manager’s comments may have breached the employee’s a duty of confidentiality but its gravity was not “particularly serious”.

As to the seriousness of the comments in question, the FWC commented that:

  • The remarks were not made in public or to employees or customers of the respondent
  • It was apparent that the HR manager and the Dealer Principal’s estranged wife were good friends who believed that they were participating in a private conversation on Facebook
  • There was no evidence that the HR manager had in any way attempted to denigrate the Dealer Principal to anybody except the estranged wife
  • Although the Facebook conversation may have been conducted by means of social media it was “in the manner of a private email”
  • The remarks made were not made in public, or to employees or customers

Rather than dismissal action, the FWC viewed the HR manager’s conduct justified a warning only.

The FWC viewed reinstatement was not appropriate, however as the HR Manager was three years from retirement she was awarded the maximum compensation – 26 weeks salary.

Enforcing Social Media Policies – the delicate balance

The unfair dismissal cases continue to show the need for employers to maintain a sound social media policy.

As the Linfox dismissal case demonstrates, an employer is entitled to establish a social media policy as a legitimate exercise to protect its reputation and the security of its business, from social media misuse by employees.

As this and other cases have shown, employees can misconceive the controls that employers can impose on their out of hours social media use.

However, as the Wilkinson-Reed case demonstrates, context is everything.

In order to maintain an appropriate degree of control over employee social media use outside of the workplace there must be a requisite connection to that employment.

The Wilkinson-Reed case is also an example of the maxim that ‘the punishment must fit the crime’.

When responding to social media misconduct, clear policies will assist an HR investigator in undertaking a robust and watertight workplace investigation.

As the Wilkinson-Reed case also shows, getting it wrong can be an expensive exercise.

Do you know how to investigate social media misconduct?

Our Social Media Investigation Kit is specially tailored to step you through your next workplace investigation.  It contains everything an HR Investigator requires to ensure they can conduct a water-tight investigation into misuse of social media by an employee.

 

 

[1] Malcolm Pearson v Linfox Australia Pty Ltd [2014] FWC 446 (17 January 2014); Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota [2014] FWC 644 (24 January 2014)
[2] Pearson v Linfox Australia Pty Ltd [2014] FWCFB 1870 (19 March 2014)

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