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
landscape.
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.
This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website.
© DLA Piper
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.
DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com