Employers are increasingly willing to regulate out-of-hours social media conduct as it relates to the workplace. But just how far can they go?
Reputational risks
Some employees see the workplace as an extension of their lives and comment on it as they see fit. However, comments on social media (both during and outside of work) can jeopardise an employer's reputation.
In Little v Credit Corp Limited t/a Credit Corp Group , an employee was terminated after posting inappropriate posts on a company’s Facebook page that had frequent commercial dealings with Credit Corp Group. The employee challenged the termination and the Fair Work Commission found that even though the comments were his personal opinion and were made outside of work hours, the comments were:
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likely to cause serious damage to the relationship between the employer and the employee
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damaging to the employer’s interests, and
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incompatible with the employees duty as an employee.
E-conduct – bullying and harassment
Employees may also find themselves in strife if they discriminate, harass, bully or vilify other employees online. Comments made about another employee after hours, but on a public forum, can provide the basis of serious misconduct and summary dismissal. Importantly, employers may be vicariously liable for that conduct unless the employer can show it took reasonable steps to prevent these acts from occurring.
Taking into account the wider context of bullying and harassing behaviours in the workplace, even de-friending someone on Facebook can be considered to be bullying on Facebook. This was seen in Roberts v VIEW Launceston Pty Ltd t/a View Launceston; Ms Lisa Bird; Mr James Bird .
A robust and effective social media policy
Employers can minimise the risks associated with social media by implementing and maintaining a social media policy. While a social media policy will increase protection for an organisation, it is important that the policy does not unreasonably infringe on an employee’s right to privacy.
A well drafted social media policy should clearly articulate that it applies to an employee’s private use of social media – whether that be social media used after work hours on the employee’s private computer, or whether it is used during employment on the employer’s IT system. Be aware that regulating an employee’s private social media usage should only apply to the extent that it has an impact on the employee’s employment or the organisation.
Clearly define what is, and is not, acceptable
A social media policy that outlines what is permitted and what is not permitted is crucial to ensure clarity around expectations. Imposing a blanket ban on social media or setting unrealistic standards is not always achievable or desirable, particularly given the prevelance of personal electronic devices in the workplace. Often, an employer may want to utilise social media for brand messaging or recruitment and harnessing the use of social media may have a positive impact on an organisation.
Use of social media during work hours
In O’Connor v Outdoor Creations Pty Ltd , the FWC confirmed that excessive use of social media during work hours may constitute a valid reason for termination of employment.
Despite this, it is unrealistic to expect employees not to use social media during work hours and it is in an employer’s interests to consider how to manage an employee’s usage at work. Some strategies include limiting time spent on social media (i.e. allow social media to be used at lunchtime) or allowing reasonable use of social media on an employee’s own device.
Ensure policy is understood
Having a policy in place that employees are not aware of is futile for an employer, and undermines the effectiveness of the policy. Ensure employees are aware of and trained in relation to the contents of the policy, and that it is a working document that remains up-to-date with technological changes.
Enforce the policy
A social media policy allows employers to discipline any employee in relation to conduct that is in breach of the policy. Employers should “follow through” with disciplining employees for any breach of the policy in order to uphold its credibility as a working document within the organisation.
As always, if there is any issue within your business that might give rise to a claim, early intervention is the best protection. Feel free to contact us on 1300 565 846 if this raises any questions.