Australia: Social media and work

In the past few years, social media has become cemented into our culture and many users of social media have numerous profiles across a number of different sites.

While the corporate world has been comparatively slow to catch up with the use of social media by individuals, we are now seeing organisations embrace the social media revolution and attempt to harness the benefits that it can bring through the utilisation of social media as a communication, engagement and marketing tool.

At the other end of the scale however many organisations remain sceptical about the benefits of social media and see it as a timewaster. Often these organisations either strongly discourage the use of social media at work or ban it entirely.

Regardless of which end of the spectrum your organisation lies, the time has come where social media can no longer be ignored. The challenge for organisations as we see it is to make the most of the benefits that social media offers while maintaining compliance with the various legislative obligations that flow from its use.

In this article, we examine the impact of social media in the workplace by considering its use as a recruitment tool, its use by employees and how this can lead to disciplinary action and the impact of the use of social media by cyber-bullies. We also consider the options available to organisations to manage the risks associated with social media.

Recruitment

Social media is fuelling a recruitment revolution. Organisations are seeking out candidates through the use of a corporate social media profile, whilst others are utilising the instant and intimate contact that social media provides into a candidate as a screening tool.

The benefits flowing from the use of social media in recruitment can include the establishment of a direct communication line to potential candidates and the development of a forward thinking and innovative reputation among candidates. When used as a screening tool, potential employers can gain insight into a candidate's personality and behaviour and can, to some extent verify claims about education and experience.

However, with the rush to take advantage of these benefits, organisations may overlook potential risks.

It is open for an employer to rely on information that is publicly available through, for example, social media sites such as Facebook or MySpace in order to select a successful candidate for a position. However, in doing so, the following risks may arise:

  • Breach of privacy – Under the Privacy Act 1988 (Cth) (Privacy Act), job applicants have the right to access information kept by an organisation in the recruitment process. This includes information gathered from social media sites about the candidate and retained on an employer's file. In addition, an organisation must take reasonable steps to ensure that the candidate is aware that the organisation is collecting personal information about the candidate, the purpose of collecting the information and who will see the information.
  • Discrimination – Sourcing irrelevant personal information or information about a particular attribute that a candidate possesses through social media in the recruitment stage creates the risk of a possible claim for discrimination by an unsuccessful candidate. In addition, under the Fair Work Act 2009 (Cth) (FW Act), there is also the risk that an unsuccessful candidate could make a claim for adverse action as a result of the use of the personal information.

For example, if a company discovers through a potential candidate's Facebook page that they are of a particular race, or are a member of a trade union, and denies the potential candidate a position in the organisation, this will amount to discrimination or a breach of the general protections contained in the FW Act unless the employer can provide that particular information did not play a part in the decision.

Even if decisions are not made for discriminatory reasons consciously, it is possible that a Court could find that a person has subconsciously taken into account what they have seen and read on a social media page. Because of the reversal of the onus of proof in a discrimination claim under the FW Act, the mere existence of a particular attribute can create a risk of potential claims against a prospective employer.

  • Breach of contract – Organisations should also be aware of the terms of use contained on various social media sites. For example, Facebook and MySpace prohibit use of information published on the sites for unauthorised commercial gain and Facebook also prohibits the collection of information from the site about an individual without first gaining consent from the individual. While we have not seen any legal action in relation to this issue, with social media sites being held more accountable as their use increases, organisations should ensure that they comply with the terms of use before collecting the information.

A best practice approach is that if employers choose to utilise social media sites in recruitment, they should firstly gain consent from candidates to access their information. Employers should also ensure that decisions made to eliminate candidates from consideration are based on lawful, jobrelevant criteria.

It is also important for employers to maintain recruitment records which document the basis upon which an applicant is either successful or not successful in securing a position. A useful strategy in this regard would be to adopt a policy applicable to the decision-makers and even a checklist to be signed by the decision-maker. The policy and checklist would then become supporting evidence to discharge the onus that is on the employer in any discrimination or adverse action claim.

It is particularly important for the purpose of defending discrimination or adverse action claims for an employer to be able to produce evidence that justifies the decision because in these situations the onus is on the employer to establish that the reason an applicant did not succeed in getting the job was not a reason that related to a protected attribute (such as sex, race, marital status, disability, sexual preference, age, transgender status, pregnancy, carer's responsibilities, trade union status, etc).

These records should also be retained for at least 7 years because under the adverse action provisions in the FW Act, an individual has the right to bring a claim up to 6 years after the alleged act (other than if the act is the termination of the person's employment).

Issues during employment

Discipline and termination of employment

An employee's personal use of social media during work hours should be managed using the same principles for disciplining employees on the basis of other misconduct or inappropriate behaviour. Organisations should not take disciplinary action (including termination) against an employee without first considering whether there is a valid reason justifying the action. Employees should also be afforded the right to procedural fairness.

In the case of Richard O'Connor v Outdoor Creations Pty Ltd [2011] FWA 3081, an employee sacked for excessive use of social media during work hours successfully established that the sacking was unfair. In the hearing, the employer failed to convince Fair Work Australia that the use of social media was excessive or that the employee was in fact guilty of the misconduct.

The speed at which a post on a social media site can reach millions of people is astounding. Where that post is damaging to an organisation the ramifications can go far beyond the intended reach of the post.

We have recently seen the impact of a negative post by an employee in the case of Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544. Ms Dover-Ray had made an allegation of sexual harassment that was investigated by her employer and found to be unsubstantiated. In response, Ms Dover-Ray posted a comment to her MySpace page criticising her employer's conduct of the investigation referring to the employer as "witch hunters", amongst other things.

The employer requested that she remove the post and, when she failed to do so, summarily terminated her employment on grounds that included publishing information in a public arena that has potential to damage the reputation of the company and breaching a reasonable and lawful direction to keep the information pertaining to the investigation confidential.

Ms Dover-Ray brought a claim in relation to the termination, but Fair Work Australia found that there was a valid reason for dismissal on the basis that the conduct of Ms Dover-Ray in publishing the blog and refusing to modify or remove it was a breach of her implied contractual obligations.

Posts on social media sites can gain notoriety very quickly and can have a dramatic effect on a company's reputation.

The content of posts is equally relevant in the context of defamation laws. An employer will usually be held vicariously liable for defamatory statements posted on social media sites by an employee where the employee is identifiable as a voice of the organisation.

Productivity

Issues of productivity are often the focus of an organisation's management of social media use. While an organisation has the right to monitor an employee's internet use (and, therefore, social media use), this must be done in compliance with privacy laws and surveillance laws (particularly in New South Wales and the Australian Capital Territory where workplace surveillance is governed by legislation).

However, the use of social media by a time wasting employee is often not the cause of the problem as invariably time wasters will be time wasters no matter what method they use to waste their time. Therefore, in a practical sense, an outright ban on the use of social media sites for this reason alone should be questioned.

From another perspective, organisations should not close the door on the use of social media as a tool to increase productivity. As the application of social media broadens, there are organisations that are harnessing the power of social media as a faster way of communicating with staff or integrating social media into engagement and education strategies.

Communication tool
The views of employees in relation to the use of social media are often different to the views of employers. While an employee may think that posting a comment on Twitter directed at their manager that they are ill and not able to come into work is the fastest method of reaching her manager and therefore the most appropriate, an employer may think that this behaviour is highly inappropriate.

As employees move around in a relatively fluid employment market, what one employer considers appropriate may vary vastly from what another employer considers appropriate.

Bridging the gap between an employee's expectations and an employer's expectations is relatively easy. The best way to manage expectations is to develop clear policies, and educate employees on those policies and what is expected of their behaviour.

Employers also need to be careful about their use of social media as a communication tool. It is difficult to see any situation where communication of a dismissal to an employee would be acceptable via social media.

Issues outside working hours

We are seeing an increase in an employee's use of social media outside work hours being used as a reason for termination of employment.

Managing employee's conduct outside of work hours has historically been a grey area. In the case of Rose v Telstra [1998] AIRC 1592 it was stated that:

"If the modern law of employment has its basis on contract not status, an employee's behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment."

What this case leaves us with is guidance on when termination of an employee's employment for conduct outside of working hours will be justified. In particular, the conduct must be likely to cause serious damage to the employment relationship or likely to case damage to the employer's interests or be incompatible with the employee's duties as an employee.

It was in this context that the case of Smith t/as Escape Hair Design v Fitzgerald [2011] FWAFB 14422 was heard. A comment was made by Ms Fitzgerald on her Facebook page of "Xmas 'bonus' alongside a job warning, followed by no holiday pay!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!" [sic]. The employer terminated her employment because of this comment, and Ms Fitzgerald lodged a claim for unfair dismissal with Fair Work Australia.

Ms Fitzgerald was ultimately successful in her claim and was awarded a moderate sum as compensation. However, it is the comments of the Commissioner that are particularly interesting. She said:

"Posting comments about an employer on a website that can be seen by an uncontrollable number of people is no longer a private matter but a public comment. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences."

The Commissioner went on to say that the comments made by Ms Fitzgerald were not such as to cause damage to Escape Hair Design's business.

From these and other similar decisions that have occurred, it is clear that comments made by an employee on a social media site have the potential to be a valid basis for termination. However, organisations should ensure that the approach it takes to social media is clearly communicated to staff so that staff are aware of their obligations and their employer's expectations in that regard.

Bullying and harassment

While bullying in the workplace is not new, the increased use of social media by employees has seen an extension of the arena in which bullying might occur. It has even attracted its own new term, coming to be known as "cyber-bullying".

The portability of technological devices such as laptops and smart phones has also extended workplace bullying beyond the workplace and into a bullying victim's home life. Comments posted on social media sites can have a dramatic effect on an employee's personal reputation and an employee's mental or emotional state.

From a commercial perspective, bullying in the workplace, including cyber-bullying, can have a negative impact on staff moral and productivity within the workplace but commercial reasons are not the only reasons to act.

This issue has recently been brought into the spotlight after the introduction of "Brodie's Law" in Victoria. The Victorian Parliament introduced amendments to the Crimes Act 1958 (Vic) in response to the suicide of a 19 year old waitress, Ms Brodie Panlock. A coronial inquest into Ms Panlock's death held that her suicide was directly related to repeated bullying that she was subjected to at work.

The amendments expand the existing crime of stalking to workplace bullying and cyber-bullying. Bullies that are found guilty under the laws face a maximum penalty of 10 years imprisonment. It is speculated the amendments will be similarly adopted in other States and Territories.

Organisations can be unaware of cyber-bullying and often underestimate its prevalence and impact. As a result, if is often poorly managed. However, an employer can be held liable for cyber-bullying that occurs in the workplace through workplace health and safety laws in all States and Territories.

Again, an appropriate way to prevent cyber-bullying is through the development of policies that clearly outline an employee's obligations and what type of behaviour will not be tolerated and also provide a mechanism for staff to approach management to discuss bullying. Staff education on these matters is also a sensible approach.

Managing the risks

Many organisations have adopted a restrictive approach to social media in the workplace by preventing employees from accessing social media sites. However, with most employees having smart phones with internet access, it leaves open practical issues of enforcement and monitoring the behaviour.

Whether social media is embraced by all workers at a workplace or not, an employer should use policies to:

  • protect it from actual or potential damage to their business;
  • manage employees' expectations about how they will be dealt with;
  • educate employees about the pervasive effect that publication of the written word can have; and
  • assist in discharging the employer's obligations about maintaining a workplace free from the risk of harm.

Of course, simply having a policy however is not enough. Employees should also be trained on the policy and managers must model appropriate behaviour that is consistent with the policy. You might even consider asking employees to 'like' it.

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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