Australia: Maybe I should not have tweeted that! - social media misuse in the workplace

This week, public broadcaster SBS dismissed soccer reporter Scott McIntyre following his posting, late on Anzac Day, of 'tweets' considered to be offensive to the SBS audience.

Employers should take away three lessons from this incident. First, you must have a clear social media policy. Second, provide regular training for employees on appropriate social media activity. And third, make sure that your managers "model" best practice when using social media.

Scott McIntyre had around 31,000 followers on twitter (he now has some 35,000!), and his twitter account identified him as an SBS reporter.

The controversial tweets essentially called into question the Australian obsession with Anzac commemoration – here are some examples of what he said:

  • The cultification of an imperialist invasion of a foreign nation that Australia had no quarrel with is against all ideals of modern society.
  • Wonder if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered.
  • Remembering the summary execution, widespread rape and theft committed by these 'brave' Anzacs in Egypt, Palestine and Japan.

SBS moved swiftly, sacking McIntyre the next day – reportedly following his refusal to remove the tweets from public view as directed.

The SBS Managing Director and Director of Sport provided the following reasons for the dismissal in a statement:

Late on Anzac Day, sports presenter Scott McIntyre made highly inappropriate and disrespectful comments via his twitter account which have caused his on-air position at SBS to become untenable.

Mr McIntyre's actions have breached the SBS Code of Conduct and social media policy and as a result, SBS has taken decisive action to terminate Mr McIntyre's position at SBS, with immediate effect.

At SBS, employees on and off air are encouraged to participate in social media, however maintaining the integrity of the network and audience trust is vital. It is unfortunate that on this very important occasion, Mr McIntyre's comments have compromised both.

It's clear that McIntrye's tweets dealt with subject matter quite unrelated to his work at SBS – he covered soccer, not politics or current affairs.

So how, then, was SBS able to terminate his employment? And what issues would a court or tribunal consider in the event of a legal challenge to the dismissal?

There have been quite a number of decisions in the last few years dealing with an employer's right to dismiss an employee for offensive, derogatory or inappropriate comments on social media.

These cases have raised important questions about the extent to which employers can control the social media activities of employees, which often occur outside the workplace or regular working hours.

Balanced against this are the rights of employees to engage in free speech. However, the cases have tended to limit freedom of speech, where an employee has a public profile by virtue of their position – and their comments are at odds with the employer's interests (whether it is a commercial enterprise, a government department or a charity).

The cases also indicate that an employer will be in a stronger position to terminate someone's employment for social media misuse, when the following factors are present:

  • The obligations of employees around permissible use of social media in the workplace are set out in a clear policy, which also informs employees of the likely consequences of any indiscretions (e.g. disciplinary action, dismissal).
  • The employee's social media posts are highly offensive (e.g. use of racist or profane language), involve sexual harassment of a co-worker, or are critical of the employer/managers.
  • The social media comments have the capacity to cause serious harm to the employer's business, damage its reputation, or undermine its position (e.g. tweets by a public servant criticising government policy administered by the department in which she worked).
  • Even if notionally 'private', the social media posts can be read by other employees or customers/clients of the employer.

However employees have successfully challenged social media-related dismissals where, for example:

  • The employee's Facebook post complaining about adverse treatment by the employer was considered merely to be a foolish outburst, and not detrimental to the employer's business.
  • The employee could demonstrate he was inexperienced and unfamiliar with how Facebook worked (e.g. that his offensive comments could be seen by other people, not just his 170 'friends').
  • The employer did not have a social media policy.

Back to Scott McIntyre: if he sought to challenge his dismissal under the Fair Work Act, or as a breach of contract claim, he would need to show that SBS did not have grounds for dismissing him on the basis of serious misconduct.

The SBS Social Media Protocol includes the following obligations of employees:

While SBS employees have the right to make public comment and to enter into public debate in their personal capacity, it is important to ensure that SBS is not brought into disrepute. Individuals should consider how their posts will be perceived by the community, taking into account the standards which apply to their work.

The SBS Code of Conduct applies to personal and professional use of social media ... These standards therefore apply to your professional and your personal use of social media.

A court or tribunal may well view McIntyre's comments as bringing SBS into disrepute; and consider the broadcaster's request that he remove the tweets to be a lawful and reasonable direction. On that basis, McIntyre's breaches of the social media policy and refusal to delete the tweets would constitute a repudiation of his obligations as an employee justifying summary dismissal.

But there are other relevant factors here, such as McIntyre's ten years of service with SBS; and the question of what steps were taken by SBS to ensure awareness among employees about its social media policy and the consequences of breaching it. McIntyre would no doubt also argue that the tweets were made in his personal capacity and unrelated to his employment.

Whatever ultimately happens in the Scott McIntyre case, the lessons for employers from this episode are clear:

  • Implement an unambiguous policy on employee use of social media, and ensure that it is consistently applied.
  • Provide regular training for employees on appropriate social media activity, both within the workplace and out of hours.
  • Make sure that your managers "model" best practice when using social media.

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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