What control does an employer have over an employee’s use of social media in their own time using their own device? Emily Shoemark, Senior Associate with Snedden Hall & Gallop explains that the answer lies in the employment agreement in place and the policies adopted by an organisation.
For any organisation, the issue of social media use is often significant, as practically all, or a large majority, of its staff are on various social media platforms. The personal opinions and conduct of staff, which were once private, now have the potential to easily reach the wider organisation, and the public, and can have an impact on the reputation of both the organisation and the individuals in question.
What legal documents are in place?
An employment agreement contains terms of employment that bind employees to comply with organisation policies.
A social media policy can provide guidelines for employees about content posted online – both as part of their job and in their personal lives.
If an organisation has no social media policy in place, and no employment agreement then as an employer, you may have no control.
Having the right social media policy in place, and communicating that policy to employees, sets clear expectations about what social media conduct is appropriate and what will not be tolerated. This enables an organisation to take quick and appropriate action if any potential issues relating to social media arise.
For example, let’s say an employee in their own time comments on social media on a topic which is contrary to the organisation’s ethos and potentially damaging to its reputation. If an effective social media policy is in place and it has been clearly communicated to all staff then the organisation may be able to take appropriate disciplinary action against that staff member.
Litigated cases in this area make it clear that while employees have freedom of speech, in circumstances where the conduct of an employee on social media (even using private accounts and in their own time) can damage the reputation of an employer, this can be a valid ground for disciplinary action:
- In the case of Linfox Australia Pty Ltd v Fair Work Commission  FCAFC 157, the Full Federal Court upheld the finding that Mr Strusel’s termination for comments made on social media was unfair. In this case, Linfox terminated Mr Strusel for serious misconduct as a result of comments posted on his Facebook profile concerning two of his supervisors, which were argued to be racially derogatory and sexual in nature. In finding that Mr Strusel was unfairly dismissed, the Commissioner took into consideration that the comments themselves were not serious misconduct; the employee did not properly understand the privacy settings on Facebook; the employee had a long record with the company and importantly the employer did not have a dedicated social media policy. Commissioner Roberts commented about the lack of policy that “[i]n the current electronic age, this is not sufficient and many large companies have detailed social media policies and have taken pains to acquaint their employees with those policies.”
- In contrast, in the case of Little v Credit Corp Group Limited t/as Credit Corp Group  FWC 9642), the Commissioner upheld Credit Corp’s decision to terminate Mr Little for comments made on his Facebook profile. The Commission found there was a valid reason to terminate Mr Little’s employment as Mr Little was well aware of the company’s Code of Conduct on social media usage and the corresponding Employee Handbook. Further, Mr Little’s conduct was found to have seriously damaged the relationship between him and Credit Corp; damaged Credit Corp’s interests; potentially damaged the relationship between him and other employees; was incompatible with his duty as an employee; and constituted serious misconduct.
Two key questions you should ask
- Do you have employment agreements in place that oblige employees to comply with organisation policies?
- Do you have a social media policy that will stand up?
A properly implemented social media policy will:
- Be tailored to the work environment;
- Provide restrictions of social media use that are appropriate and reasonable for the work environment; and
- Be clearly communicated to all employees
If, as an employer, you have an ‘off the shelf’ social media policy that is not tailored to your business, the risk is that the restrictions could be held to be unreasonable and unenforceable.
How can Snedden Hall & Gallop assist?
If you employ people and do not have a social media policy in place, or it has not been tailored to your business, the experienced Business team at Snedden Hall & Gallop can advise you on the best solution for your needs. If you have a specific issue with an employee’s use of social media, please call us today for assistance, on (02) 6285 8000 or by email.