Social media activity: a valid ground for dismissing an employee?

“It is important for employers to have a clear social media policy in place,” says Nathan Moy of Clayton Utz. “Training is an important foundation for effectively enforcing your social media policy.” This is a not to be missed read regarding social media in the workplace.

ELM: We understand that the Fair Work Commission has increasingly been asked to consider issues raised by social media in the workplace; why do you agree this is important? What factors have contributed to this?

NATHAN: There have been a lot of colourful cases before the Fair Work Commission in the last couple of years regarding the use of social media by employees.

There are a number of reasons for this. The proliferation of social media sites such as Facebook, Twitter and Instagram means that it is easy for employees to post comments on the internet for the entire world to see. That is likely to continue with the development of new social media.

Employers have also begun to realise that social media platforms can be used by employees in inappropriate ways, and in particular, in ways that might damage their business. One downside of it being so easy to post on social media is that employees are able to use it to vent their displeasure with workplace issues with relative ease—140 characters quick thumbs is all it takes for what might otherwise be a private thought to be broadcast to the world.

Given this, employers have become more active in monitoring the use of social media, and are more willing to take disciplinary action against employees who are seen to be behaving improperly on social media in the workplace—and even outside the workplace.

It isn’t particularly surprising that a number of dismissals related to social media have ended up before the Fair Work Commission. What the cases indicate is that there are a few key issues the Commission has been asked to consider when it is dealing with social media.

Firstly, to what extent is employees’ behaviour on social media a private activity? Employees will often argue in unfair dismissal cases that what they said or did was something private between them, and their social media friends. Employers, naturally, might take a different view, particularly where such activity is available for the entire world to see. Against this background, the Commission has provided some useful guidance to employers on the extent to which they can legitimately control their employees’ behaviour on social media.

Secondly, when does social media activity provide a valid ground for dismissing an employee? Employers often rely on social media activity as a grounds for disciplinary action, particularly where the employee’s comments are embarrassing to the employer or might damage its reputation. It is important for both employers and employees to understand what is, and what is not, permissible use of social media by employees.

Thirdly, when will a dismissal be harsh even if the employer does have a valid reason? One particular difficulty employers can face with social media is the fact that publicly available comments have the capacity to hurt their business, and the desire is to move swiftly to investigate and terminate. A number of the cases look at the way in which employers should go about disciplinary proceedings against employees and what an employer should do to ensure that the dismissal is fair and defensible.

 ELM: We’ve been reading a lot about how employers are being encouraged to ensure that they have a concrete social media policy in place. For companies that have not drafted one, or where they’re looking to benchmark their current policy, what top five points would you suggest it included?

NATHAN: It is important for employers to have a clear social media policy in place to help them mitigate the risks associated with social media.

My 5 key points for social media policies are:

1. Clearly distinguish between the use of official social media accounts, and the use of personal social media accounts. If your business has social media accounts that employees are expected to operate for work purposes, consider dealing with that in a separate policy.

2. If you want to regulate what employees might say on their personal accounts, consider what the legitimate connection is to your business. Are you concerned about behaviour that might be embarrassing? Are you trying to stop behaviour that might be bullying or harassment towards colleagues? Is the behaviour you are concerned with otherwise likely to affect the working relationships of employees or their productivity at work?

3. For activity on official social media accounts, make sure you are clear about what employees are, and are not, permitted to say on behalf of your business. In particular, set clear ground rules about the use of confidential information and the way in which employees are expected to interact with your customers.

4. Put in place a process for investigating suspected misconduct on social media. Just because employees might post something in the flash of an eye, doesn’t mean an employer can fire the gun without a proper investigation to ascertain the facts and give the employee an opportunity to respond.

5. Make sure employees understand the consequences of a failure to comply with the social media policy (or policies). In particular, make it clear that termination of their employment is a possibility.

ELM: Do you have any advice on what appropriate training can be provided in support of such policies?

NATHAN: As with any other form of misconduct in the workplace, training is an important foundation for effectively enforcing your social media policy.

Ideally, training on the use of social media should be provided to employees at the beginning of their employment, as part of their induction process. For existing employees, if you haven’t already done so, it’s a good idea to organise that training now.

When it comes to the content of the training, there are a few topics that we recommend employers include:

1. Who is bound by the policy? It sounds obvious, but employees will argue the point if they think it hasn’t been made clear to them from the outset that the policy applies to them.
2. The relationship between the social media policy and other policies in the workplace—for example, the workplace bullying policy. Unfriending someone on Facebook was found by the Fair Work Commission to be workplace bullying on one case, so it is important that employees understand that they are expected to interact with colleagues on social media just the same as they would be in the physical workplace.
3. Practical examples of what might not be acceptable social media conduct. Some good examples include:
   1. Little v Credit Group Ltd [2013] FWC 6942: this involved inappropriate Facebook usage leading to up to the dismissal, defended by the employee on the basis that the Facebook page was private and the posts did not refer to his employer by name, despite posting critical comments. Dismissal was upheld as valid on the basis that employee’s actions damaged the relationship between him and employer, damaged the employer’s interests, had potential to damage his relationship with other employees and constituted serious misconduct.
   2. Dover-Ray v Real Insurance Pty Ltd (2010) 204 IR 399: although this MySpace comment did not identify the employer by name, the Fair Work Commission upheld the dismissal on the basis that anyone who knew the applicant would be able to understand that the comment related to her workplace.
   3. Fitzgerald v Dianna Smith t/as Escape Hair Design (2010) 204 IR 292: a derogatory comment made by the employee about her employer, relating to not getting a bonus, was found not to be serious enough to cause reputational damage to the employer. The Fair Work Commission also took into account the employer’s delay in finding the dismissal unfair. The Fair Work Commission did emphasise, however, that it would be foolish for employee to thing that they can use social media with total immunity from the consequences.
4. Explain why you are concerned to regulate their behaviour on social media. Given employees will often use social media outside the workplace, they might query why their employer has a right to tell them what to do on social media. The Fair Work Commission has, however, confirmed that a social media policy is a legitimate exercise of an employer’s power to protect the security and reputation of their business—and that the policy can extend to conduct outside of work.

ELM: A big topic and one you’ve had experience in, is around misconduct on social media constituting to employee dismissal. There are a lot of points being made on this topic; filtering through, what comments do you have on this?

NATHAN: There are a few key takeaway points on this issue.

The first is that misconduct on social media can provide a valid reason to terminate an employee. It is important to understand, however, that not all activity on social media will give rise to a valid reason. As an employer, you don’t have a right to regulate everything that your employees do in their private time. Their duties to you only extend so far and employees still have a right to free speech and privacy.

The key thing to consider is—what is the legitimate connection to the workplace? Has the employee’s conduct somehow damaged the reputation or security of your business? Is the behaviour workplace bullying or harassment? Will the behaviour affect the employee’s ability to perform their duties?

Secondly, treat social media just as you would any other form of misconduct. If the conduct had not occurred on social media, would you have a valid reason for termination? Would you even be considering termination?

Thirdly, consider whether the employee has breached your social media policy. If you don’t have a policy, termination might be problematic. If you do, be clear as to what conduct the policy regulates and whether the policy is a lawful and reasonable direction. This comes back to considering the extent to which you have a legitimate interest in regulating what your employees do on social media, and whether that has been clearly articulated to employees.

ELM: Social media issues are only one of many workplace challenges an HR team can face. In understanding the trends, what are a few other top ones on the list for you and the firm? And why?

NATHAN: One issue that we are increasingly seeing is workplace bullying. It had been expected that following the introduction of this jurisdiction to the Fair Work Commission, there would be a flurry of bullying cases. That hasn’t proven to be the case.

HR departments are, however, having to deal with bullying in other ways. Often the issue of bullying raises its head in the context of performance management, with an employee alleging bullying against their manager. Interestingly, we are also seeing a rise in the number of claims by managers of bullying by their subordinates in this context.

It might be that the increase in the number of these types of cases is a symptom of another trend we are seeing, which is a better focus by employers on performance management. As budgets are tightened and managers are expected to make better use of resources, performance management is high on the agenda for many of our clients. Managers are looking for support in how to go about performance management and deal with difficult employees who refuse to cooperate.

Flexibility in the workplace is also a hot topic at the moment. Whilst flexibility had traditionally been understood as something that was only relevant to parents returning from parental leave, many employers are now looking at how they can more effectively implement flexible working arrangements across their workplaces. For some employers, this has meant designating every job as a flexible one, with managers required to justify why their employees need to be at their desk 9–5, Monday to Friday. In other workplaces, that has meant looking more creatively at what flexibility means—could employees work from home? Do employees need an office or fixed desk? How can technology be better used to encourage collaboration and more mobile work arrangements? It’s certainly an exciting trend and something that is going to be important for employers to work through.

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About Nathan Moy:

Nathan is a Senior Associate in the Workplace Relations, Employment and Safety practice of the Canberra office at Clayton Utz. Prior to moving to private practice in 2010, Nathan worked in house as part of the legal team at ComSuper (now the Commonwealth Superannuation Corporation).

Nathan works closely with Commonwealth government and private clients on sensitive unfair dismissals, general protections administrative law and industrial relations matters. Nathan is a trusted advisor to Commonwealth government clients on investigations into employee misconduct.

He is also experienced in advising clients on critical employment issues including drafting employment contracts, managing employee entitlements and enterprise agreement negotiations.