A legal guide to social media for HR


A quick guide to how HR should handle any employee activity on social media that might negatively impact the workplace or the organisation.

People like to say that things were simpler in the “good old days” (cue sepia tone and bluegrass music). You went to work, you did your work, you went home. It wasn’t all that easy to get in touch with friends and family during working hours. But then, over time, the telegraph, the telephone, email, and now social media have made it easier than ever to instantly communicate with your loved ones and the world. For better or for worse, anyone can pick up a phone or tablet and publish/broadcast their thoughts, wherever or whenever.  

A Victorian business recently learned, to its detriment, the harsh realities of social media use in the workplace.  

Colby Somogyi had been employed for just over a year, when he was told that he was to be summarily dismissed due to an inappropriate and explicit status update he had posted to his Facebook profile. Although we are reluctant to disclose its exact contents to polite company, suffice to say it suggested that a woman was promoted because of sexual favours that she provided to her boss.  

Five minutes later, the post was amended to clarify that Mr Somogyi was referring to his mum’s workplace — although the girl in question was still a “woman with loose morals” [our words]. Shortly after making the post, Mr Somogyi was contacted by his managing director. The conversation lasted approximately one minute and Mr Somogyi was advised that he was fired, effective immediately.

(Want a legal guide to instant dismissals? Read ours.)

Mr Somogyi later commenced unfair dismissal proceedings. His former employer argued that Mr Somogyi’s “derogatory comments” overstepped boundaries and were not consistent with a safe working environment that is free of harassment, victimisation, or any kind of sexual abuse. Mr Somogyi claimed that he was never provided with a copy of the social media policy and that he was unaware of having received any warnings about social media use. Mr Somogyi alleged that the post was unrelated to his workplace, and was made while he was on a break at work.

The Fair Work Commission found that Mr Somogyi had in fact been unfairly dismissed, and awarded him over $6,000 as compensation. The Commission found, among things, that:

  • Mr Somogyi had flexible working hours and it was unclear whether he was on a break at the time of making the post;
  • there was no evidence to show that Mr Somogyi was provided with a copy of the social media policy as the policy acknowledgment document was unsigned; and
  • the employer’s concerns about the language used in the post was “tempered by the fact that similar language appears to have been used in the workplace at various times”.

Lessons from the case for HR

  1. A thorough social media policy is essential. However, it is not enough just to prepare a policy — employees must also be made aware of it and receive training about their obligations.
  2. Clear expectations for workplace behaviour should be set out in policies and guidelines. Employers should also monitor workplace culture, such as language used, and take steps to ensure inappropriate behaviour is addressed.
  3. When facing a situation of inappropriate social media use in the workplace, carefully consider whether the employee’s posts have occurred within “the workplace”, especially if the post in question occurred during a break.  

 

(Unsure about an HR issue? Gain access to AHRI:ASSIST – an online resource centre with info sheets, guidelines and templates on different HR topics. Exclusive to AHRI members.)

Dealing with social media posts as an employer can be very difficult, and while it may only take a few seconds for an employee to grossly misuse social media during work time, it takes much longer than that for an employer to properly respond to it and take appropriate action.

Every situation is different, so you should always think carefully before making any #decisions. #goodluck!

Aaron Goonrey is a Partner and Luke Scandrett is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice. Aaron can be contacted at agoonrey@landers.com.au.

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A legal guide to social media for HR


A quick guide to how HR should handle any employee activity on social media that might negatively impact the workplace or the organisation.

People like to say that things were simpler in the “good old days” (cue sepia tone and bluegrass music). You went to work, you did your work, you went home. It wasn’t all that easy to get in touch with friends and family during working hours. But then, over time, the telegraph, the telephone, email, and now social media have made it easier than ever to instantly communicate with your loved ones and the world. For better or for worse, anyone can pick up a phone or tablet and publish/broadcast their thoughts, wherever or whenever.  

A Victorian business recently learned, to its detriment, the harsh realities of social media use in the workplace.  

Colby Somogyi had been employed for just over a year, when he was told that he was to be summarily dismissed due to an inappropriate and explicit status update he had posted to his Facebook profile. Although we are reluctant to disclose its exact contents to polite company, suffice to say it suggested that a woman was promoted because of sexual favours that she provided to her boss.  

Five minutes later, the post was amended to clarify that Mr Somogyi was referring to his mum’s workplace — although the girl in question was still a “woman with loose morals” [our words]. Shortly after making the post, Mr Somogyi was contacted by his managing director. The conversation lasted approximately one minute and Mr Somogyi was advised that he was fired, effective immediately.

(Want a legal guide to instant dismissals? Read ours.)

Mr Somogyi later commenced unfair dismissal proceedings. His former employer argued that Mr Somogyi’s “derogatory comments” overstepped boundaries and were not consistent with a safe working environment that is free of harassment, victimisation, or any kind of sexual abuse. Mr Somogyi claimed that he was never provided with a copy of the social media policy and that he was unaware of having received any warnings about social media use. Mr Somogyi alleged that the post was unrelated to his workplace, and was made while he was on a break at work.

The Fair Work Commission found that Mr Somogyi had in fact been unfairly dismissed, and awarded him over $6,000 as compensation. The Commission found, among things, that:

  • Mr Somogyi had flexible working hours and it was unclear whether he was on a break at the time of making the post;
  • there was no evidence to show that Mr Somogyi was provided with a copy of the social media policy as the policy acknowledgment document was unsigned; and
  • the employer’s concerns about the language used in the post was “tempered by the fact that similar language appears to have been used in the workplace at various times”.

Lessons from the case for HR

  1. A thorough social media policy is essential. However, it is not enough just to prepare a policy — employees must also be made aware of it and receive training about their obligations.
  2. Clear expectations for workplace behaviour should be set out in policies and guidelines. Employers should also monitor workplace culture, such as language used, and take steps to ensure inappropriate behaviour is addressed.
  3. When facing a situation of inappropriate social media use in the workplace, carefully consider whether the employee’s posts have occurred within “the workplace”, especially if the post in question occurred during a break.  

 

(Unsure about an HR issue? Gain access to AHRI:ASSIST – an online resource centre with info sheets, guidelines and templates on different HR topics. Exclusive to AHRI members.)

Dealing with social media posts as an employer can be very difficult, and while it may only take a few seconds for an employee to grossly misuse social media during work time, it takes much longer than that for an employer to properly respond to it and take appropriate action.

Every situation is different, so you should always think carefully before making any #decisions. #goodluck!

Aaron Goonrey is a Partner and Luke Scandrett is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice. Aaron can be contacted at agoonrey@landers.com.au.

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