The potential for social media as a competitive marketing tool
for businesses is unquestioned. Facebook, Twitter and LinkedIn,
amongst other sites, are increasingly being utilised by businesses
in accordance with comprehensive marketing strategies designed to
maximise brand awareness, target potential customers and employees,
and provide networking forums for professionals to connect, all at
relatively low cost compared with other conventional forms of
However, it is this very ability to connect with a wide-range of
stakeholders that constitutes one of the major emerging risks of
social media, particularly as functionality is enhanced and
documents can be uploaded. Cases illustrating this risk involve
employees using LinkedIn contacts, which are obtained in the course
of employment, to poach customers, suppliers and other employees
for themselves or future employers. The cases demonstrate potential
exploitation of contacts developed in the course of employment.
In Bradford Pedley v IPMS Pty Ltd T/A peckvonhartel
 FWC 4282, a senior interior designer of Peckvonhartel was
dismissed for using LinkedIn to contact the clients of his
employer, to advertise that he was expanding his own business from
a part-time to full-time operation and solicit work. In that case,
the Fair Work Commission considered that this was in breach of two
provisions of Mr Pedley's employment contract, one prohibiting
the employee from competing with the employer, and a requirement
for the employee to at all times act honestly and in a manner
consistent with employment. However, the actual ownership of
LinkedIn contacts was not a consideration in this case.
In Naiman Clarke Pty Ltd v Marianna Tuccia 
NSWSC 314 it was alleged that Marianna Tuccia, a recruiter, used
Naiman Clarke's candidate list to systematically connect with
those candidates prior to exiting her employment to work for a
competitor. It was alleged that she was then able to use those
LinkedIn contacts to place some of those candidates in her new
role, obtaining financial benefit for both herself and the new
employer. However, this case also failed to consider who owns the
contacts made in the course of employment.
What does this mean for employers?
Given the rapid development of this technology, and the
typically delayed response of the law in meeting novel
developments, the onus falls on employers to be proactive and
protect their own interests. While the law regarding confidential
information and sensitive business information can offer some
guidance in this area, the difficulty is that LinkedIn detail is,
for the most part, publically available and not confidential in
nature. In many respects it is a form of detailed, digital business
card or online resume with contact functions, including
Until this area of law is settled and given the challenges of
controlling social media use, post-employment restraints which
contemplate the use of social media are an essential protection.
Employers must ensure that all employment contracts reflect this
new way of managing client, supplier and employee relationships and
the potential risks that follow, and incorporate appropriate
restraint and policy protections that are aligned with the
Don't just set and forget your restraint provisions and
technology related policy – these need to be reviewed and
developed on a regular basis. The Christmas/New Year wind down is a
great time to conduct a review of these matters. Contact Coleman
Greig for an audit of these matters for you, along with office
based strategy to control the risks created by technology.
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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