Business owners beware! Even if you or your businesses are not active in the social media space, your employees’ online actions can have a lasting real life impact.
In a well-known case from 2011, an employee of Linfox Australia Pty Ltd was dismissed for posting offensive and discriminatory comments about two of his managers on his Facebook profile page.
The Fair Work Commissioner recognised that the posted comments were ‘outrageous and distasteful’, but found that Linfox did not have grounds to dismiss the employee. At the time of the dismissal and the hearing, Linfox did not have a social media policy.
In the recent case of Malcolm Pearson v Linfox Australia Pty Ltd , the Fair Work Commission held that it is not “harsh, unjust, or unreasonable” to expect an employee to comply with a social media policy that operates outside, as well as inside, the workplace. In this case, Linfox (presumably having learned from its previous experience) had implemented a social media policy and Mr Pearson’s refusal to sign this policy, amongst other shortcomings, constituted a valid reason for dismissal. The Commission dismissed the unfair dismissal case on the basis that the social media policy was a legitimate exercise by Linfox in protecting its reputation and security. The Commission recognised that the natural overlap between public and private life makes such an “invasive” policy necessary.
“It is difficult to see how a social media policy designed to protect an employer’s reputation and the security of the business could operate in an ‘at work’ context only…Gone is the time where an employee might claim posts on social media are intended to be for private consumption only.”
These decisions form part of an evolving body of case law that reflects the increasing prevalence of social media and a more sophisticated understanding of its implications in the workplace.
So what should employers do to protect their interests? Most experts agree that employers should:
- Implement a comprehensive social media policy
- Adequately train their employees in the policy and ensure they are aware of the employer’s expectations around social media in and out of the workplace, and
- Regularly review the policy to maintain currency.
Employers should be mindful that courts and tribunals are increasingly willing to hold employees accountable for social media misuse. Hence, employers should not shy away from robust disciplinary actions when the circumstances are appropriate.