A recent decision has upheld the enforcement of a social media policy out of work hours.
Workplace policies and procedures have been widely adopted to prescribe acceptable standards of conduct for employees. But what can these policies validly regulate? And how can an employer enforce them? These important questions were considered by the Fair Work Commission in Pearson v Linfox Australia Pty Ltd  FWC 446.
Mr Pearson's breaches of workplace policies
Linfox Australia Pty Ltd had several workplace policies regarding absenteeism, mobile phone use, social media and "Safe Work Procedures". Mr Malcolm Pearson had been an employee since January 2007. He had been engaged at different distribution centres managed by Linfox.
From 13 July 2012, Mr Pearson was issued a series of warnings, both written and verbal , for several breaches of Linfox's workplace policies, and refusing to sign an acknowledgement to the effect that, "I_______ have read and understand" the relevant social media policy. He crossed out the word "understand" and in the signature space, wrote, "refused to sign".
On 21 May 2013, Linfox terminated Mr Pearson's employment. Mr Pearson then commenced proceedings for unfair dismissal
What makes a dismissal unfair?
Under section 387 of the Fair Work Act 2009 (Cth), a dismissal is unfair when, having regard to a range of factors, it is considered to be "harsh, unjust or unreasonable". One of the relevant factors is whether there is a "valid reason" for the termination (section 387(a)). This looks to the reasons for the termination and requires an assessment of whether the reasons were "sound, defensible or well founded" (Selvachandran v Peteron Plastic Pty Ltd (1995) 62 IR 371).
Was it reasonable for the employer to require compliance with its social media policy?
Employers have the right to issue lawful and reasonable directions to employees. Whether a particular direction is capable of binding an employee depends upon the connection between that direction and the employment of the employee.
Before the Commission, Mr Pearson argued that he refused to sign the social media policy as it applied outside of working hours and "as Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech".
Commissioner Gregory declined to specifically address whether the policy breached Mr Pearson's individual rights, but delivered a resounding endorsement of the social media policy, including its application outside working hours:
"the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business... It also serves a useful purpose by making clear to employees what is expected of them. Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees... it is difficult to see how a social media policy designed to protect an employer's reputation and security of the business could operate in an "at work" context only.
Accordingly, Commissioner Gregory found that Linfox had acted neither unreasonably nor unlawfully in requiring Mr Pearson to sign the social media policy acknowledgement.
Commissioner Gregory held that Linfox's decision to terminate Mr Pearson's employment was not harsh, unjust or unreasonable, given his repeated breaches of other policies and Linfox's efforts to ensure its policies, and the consequences for breaching them, were clear and understood. Accordingly, Mr Pearson's application was dismissed.
Employers' social media policies: getting the balance right
Many employment policies governing conduct only apply to employees during working hours. However, the nature of social media is such that it can be accessed any time and, even when it is accessed outside of work hours and/or on private devices, can still have a detrimental impact on the employer's interests.
This does not mean that employers can create blanket policies that cover any and all use of social media by their employees, inside or out of work. Any social media policy still needs to be appropriately directed at protecting the reputation and security of the employer. If it is, it will be lawful, legitimate and reasonable to require compliance with social media policies outside of work.
When it comes to applying a social media policy, employers should take the same approach as with any other workplace policy. While, as a general proposition, an individual breach of a workplace policy is unlikely to justify termination, a series of breaches may be sufficient where it reflects an employee's flagrant disregard for policies and procedures. To establish this, employers should endeavour to document relevant steps, including training on workplace policies and all warnings regarding breaches of those policies.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.