Crafting a robust social media policy could protect your company from unfair dismissal claims.
At a time when 20 million Australians have an active social media account, no organisation can afford to ignore the impacts that social media can have on branding and reputation.
When comparing different stances taken by the Fair Work Commission (FWC) and Federal Courts, it’s apparent that for a company to be well and truly protected should their employees engage in harmful social media use (against the company or an important client, for example), it needs to take precautionary steps.
It’s essential companies maintain an updated and well-distributed social media policy to eliminate any ambiguity around acceptable use.
Flouting the rules
The 2019 judgement of Banerji v Bowles highlighted just how critical such policies are in communicating a company’s stance on social media. Banerji, a former employee of the Department of Immigration and Citizenship, was tweeting from an anonymous account, often being critical of her employer. She amassed over 9000 tweets, but she never publicly declared she was a public servant
When Banerji’s identity was revealed as part of an internal investigation, her employment was terminated. This decision hinged upon the fact that the Australian Public Service had a clear code of conduct which included social media guidelines outlining that it is inappropriate for employees to make unofficial public comments that criticise the government, politicians or any of their policies.
Social media policies not only reinforce expectations, but also strengthen an employer’s grounds for dismissal where an employee has grossly misused social media.
In matters where an employee files for unfair dismissal, for example, having a social media policy wherein the alleged breach can be clearly identified could be your company’s saving grace. The absence of a social media policy gives way for the FWC and Federal Courts to push forward their own biases or understanding of what is considered to be an appropriate use of social media by employees.
This can be seen in the case of Stutsel v Linfox Australia where comments made by an employee on Facebook, which were both racist and sexist, were essentially brushed aside by the presiding commissioner who noted that while he believed the comments were made in “poor taste”, they were not serious enough to warrant termination by Linfox.
Its lack of social media policy gave the commissioner the freedom to disregard Linfox’s expectations of employees’ public commentary on social media, meaning the employee in question won the case.
Lucky win
In the matter of Dover-Ray v Real Insurance, the company maintained an ‘Electronic Use and Information Security Policy’ which stated: “Employees must not download, retrieve or send sexually explicit, harassing, racist or otherwise discriminatory or illegal material from the internet or email at any time.”
Employees were required to adhere to this policy every time they logged onto their computers at work, but it was not an official or formal social media policy. While this could have worked against the employer, it was lucky that the presiding commissioner was able to use their discretion. Sometimes, the FWC is willing to provide a certain amount of leeway to an employee acting in the heat of the moment, if the employee is willing to promptly take an offending social media post down.
In the Real Insurance case, the commissioner indicated leeway would be considered; however, the applicant was not willing to take the relevant post down. As a result, the FWC maintained that the employee’s activity on social media did amount to a valid reason for the termination because she wasn’t willing to cooperate with the employer’s request.
What’s interesting about this matter is that in offering the employee the opportunity to take down the post, the commissioner failed to grasp the notion that once the damage is done, it’s done.
Simply taking down a post on social media does not reduce the damage already done to an employer’s reputation. Nor does it permanently remove the traces of the post from the internet. This is why it’s important to remind your employees that your social media policy exists – so it can act as both a preventative and a protective tool.
Comparing the outcomes of the above-mentioned cases, two gems of wisdom stand out for companies that wish to protect themselves from the besmirching of their name by employees via social media.
Firstly, ensure your company maintains a well-distributed and well-updated social media policy. It’s essential in a time of high social media consumption.
Secondly, act quickly if an employee breaches your social media policy. Carefully detailing the breaches and subsequent warnings (if necessary) ensures that all employees are aware of company expectations and provides grounding for a legitimate dismissal should the need arise.
This article first appeared in the May 2021 edition of HRM magazine.
Alan McDonald is the managing director at McDonald Murholme law firm.
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