The use of social media in the workplace is a relatively new issue for both employees and employers. Recent cases have highlighted the perils of social media for employees, and the importance for employers of managing these issues correctly.
Workplace policies and training are essential to help employees understand their responsibilities in relation to social media and the various forms of misuse that can lead to disciplinary action or dismissal (in and outside the workplace).
In the recent 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 Australia Pty Ltd 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 recent 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.
What should employers do?
The first step for employers to take is to ensure that employees understand that what they say and do in their personal time can affect their employment and result in disciplinary action. Employees should also consider implementing specific social media policies that clearly define what social media is, what conduct is prohibited both on off site and on site and conduct social media training.
If you have any questions about what would constitute social media misconduct for an employee, or as an employer if you would like assistance in drafting a social media policy, please contact our Employment Law Team.