"The probability of being watched is proportional to
the stupidity of your act": but make sure you have a
social media policy.
Employment law cases involving social media are no rarity.
The subject matter is often an employee rant on their Facebook
page. Whether or not the rant is sufficiently gross to justify
termination or other disciplinary action will depend on the content
and circumstances (who could see it, and how strongly the employer
was identified), but also on the clarity of the employer's
rules about acceptable and unacceptable conduct, including
conduct away from work and on a "private" site.
By now, all employers should have in place email and internet
policies which deal with acceptable and unacceptable conduct:
often, social media policies can be an extension of these existing
As an illustration of the need for a social media policy,
consider this recent case involving Linfox.
Linfox employee, Mr Stutsel, made derogatory comments about his
managers on his Facebook page, including comments fantasizing about
a bear committing violence on the managers, and referring to a
Muslim manager as a "bacon hater". One of the managers
came across the comments, by indirect means, and was upset. Mr
Stutsel was sacked, and claimed unfair dismissal.
The employee's Facebook page had been set up by his wife and
daughter and he thought it had the maximum privacy setting. FWA
thought that the comments had the flavour of a whinge about work in
conversation in a pub or a café. They were foolish, but not
to be taken too seriously. They were not a blog intended to be on
public display. FWA found that the employee had a right to free
speech, and, within the forum he was using, his comments were not
out of place. Mr Stutsel had been with Linfox for 22 years, with an
unblemished record for 22 years and was reinstated. FWA described
his conduct as foolish and stupid and thought that he would well
advised to heed another comment on his Facebook page: "The
probability of being watched is proportional to the stupidity of
"Here is wisdom" was FWA's dry
The outcome may have been different if Linfox had had a clear
policy in place, prohibiting disparagement of co-workers or the
company in public forums, or comment on operational (confidential)
matters. However Linfox did not have a policy at all. FWA said its
induction training and employee handbook were insufficient these
days, since many large companies have detailed social media
policies and have taken pains to acquaint employees with those
So, are your policies up to speed?
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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