Social media, once feared by employers, has become an important
tool in the workplace. Used for purposes as varied as the
recruitment of new staff, marketing or even client development,
social media platforms such as Facebook, Twitter, Google
Documents, blogs and YouTube are now a staple part of the workplace
It is clear that the use of social media tools can present a double-edged sword for employers - promising both risk and reward. The benefits of embracing social media are well established and hardly need reiteration.
However, the risks and concerns associated with social media tools extend well beyond the potential decrease in productivity flowing from employee use. Examples of such concerns might include conduct that negatively portrays the employer, discloses confidential employer information or constitutes bullying and harassment.
Complications can also arise when an employer may seek to discipline an employee for improper social media tool use. For example, to what extent can an employer rely on an employee's social media post that they are attending a concert when on sick leave from work? Indeed, some content published by employees on social media websites may be protected - various laws in many states protect employees' political activities or affiliations and other legal off-duty activities, or even whistleblower laws that potentially protect various disclosures in both the Federal or state jurisdiction.
The recent decision handed down by Deputy President Swan of Fair Work Australia in O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys may shed some light on the work/home-conduct dichotomy so many employers face when contemplating the use of disciplinary action in such circumstances.
In this matter, a disgruntled employee posted a disparaging comment about his employer on his Facebook page from his computer outside of work hours. Mr O'Keefe admitted to posting the comment 'f...ing work still haven't managed to f...ing pay me correctly. C...s are going down tomorrow', referring to alleged outstanding commission payments owed to him. The comments were read by work colleagues, which lead to the employer making the decision to terminate Mr O'Keefe's employment some days after the comment was posted. Mr O'Keefe argued that nowhere on his Facebook page was his employer's name mentioned and that only a select group of 70 people had access to comments posted by him.
The employer gave evidence that approximately 40% of his staff were female and that use of the word 'c...s' amounted to harassment and a threat to his female staff. As there was no contest as to what was posted on Mr O'Keefe's Facebook page, the only mitigating factors taken into account by Deputy President Swan were that Mr O'Keefe was angry at not being paid at his commissions and did not intend for the comments to be seen by the operations manager of the business, with whom he had been having discussions about the unpaid commissions. Nonetheless, Deputy President Swan observed that it would be difficult to accept that Mr O'Keefe 'was unaware of the consequences of his actions'.
In rejecting Mr O'Keefe's claim for unfair dismissal, Deputy President Swan made the observation that the fact that the comments were posted out of work hours from his home computer did not make a difference. He took the employer's view and made the comment that the 'separation between work and home is now less pronounced than it once used to be'.
It is clear that there are very real risks that flow from the many rewards offered by social media tools. What can employers do to better protect themselves and handle the use of these tools in the workplace?
One of the first steps is that an employer adopts a social media policy. Drafting and implementing a policy that is consistent with an employer's organisational culture and approach to emerging social technologies can help establish boundaries and consequences for the use and potential misuse of social media tools. Such a policy would make reference to, or reiterate, established rules and policies in relation to harassment, discrimination, workplace health and safety, confidentiality, computer usage and disciplinary procedures, for example.
Taking a proactive approach through both recognising and anticipating the risks of social media tools places an employer in a strong position to deal with the issues that arise from the introduction of new technologies within the workplace. For more information, please contact the DLA Piper Workplace Relations, Employment and Safety Team.
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This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.
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