Employees no longer just gossip by the water cooler, complain about a boss during a coffee break, or make inappropriate remarks at the pub after 'knock-off'. In today's world of instant communication and social media, wayward employee behaviour can have a devastating impact on a company's reputation and brand. Having clear social media policies in place is crucial in today's digital world.
In response, employers are seeking to enforce 'good' employee behaviour on social media, including on employee's personal accounts and profiles. One common method of ensuring compliance is the possible termination of employees' who participate in offensive behaviour on social media. However, the circumstances in which an employee can be dismissed as a result of a social media post are not straight forward.
Compare the statements made below and guess which of the social media posts were found to be valid grounds to terminate someone's employment:
- Sending pornography to a private group chat, which included a mix of colleagues and school friends; and
- A public Facebook post reading: "you don't do anything all day how much of the bosses c**k did you suck to get where you are".
You might have guessed both?
While statement 1 was found to be grounds to dismiss an employee; statement 2 was not.
As the above statements show, just because an employee's conduct might be considered antisocial and inappropriate, such behaviour does not automatically amount to grounds for dismissal and so care must be taken to ensure any such dismissal is not harsh, unjust and unreasonable based on the criteria set out in the Fair Work Act. In addition, a well drafted social media policy is often vital for any employer seeking to regulate their employees' conduct outside of the office, particularly the time they spend on social media.
In the case of Colwell v Sydney International Container Terminals Pty Ltd  FWC 174, Luke Colwell was dismissed by his employer after it was found that Mr Colwell had engaged in serious misconduct in breach of the company's bullying and harassment policy. Mr Colwell had been drinking on a rostered day off and sent a short pornographic video via Facebook messenger to his Facebook friends, which included a number of work colleagues. It was found that Mr Colwell had breached the zero-tolerance workplace bullying and harassment policy. The Fair Work Commission upheld the dismissal because the sending of the video to his colleagues had a sufficient nexus with his employment because if he was not employed at SICT, he would not have known his colleagues from SICT who received the message.
The quote from statement 2, above, is from the case of Somogyi v LED Technologies  FWC 1966. Mr Somogyi posted the remark on Facebook and his employment was then subsequently terminated due to the post.
The court found that, despite the post being 'crude and immature', it did not directly identify either LED Technology or its employees and therefore it was not readily apparent who the comment was directed at (despite the reference to 'bosses'). In a 'comment' below the post, Mr Somogyi said that the post was in support of his mother who was suffering from bullying. There was also no proof that Mr Somogyi was aware of the firm's social media policy and he was not given an opportunity to respond to the investigation which resulted in his termination. Both of these factors led to the court to determine that Mr Somogyi was unfairly dismissed.
More broadly, employers may also look to terminate employees if their social media presence affects the reputation of the employer. In recent years, the Fair Work Commission has seen a sharp rise in instances where employers have terminated employees due to their actions after hours, particularly on social media, where these reflect poorly on the employer and its brand. Below we will explore some instances where after-hours social media use has resulted in the termination of an employee due to their actions damaging the reputation of their employer as opposed to the offensive behaviour explored above.
Misogynistic Meriton Employee
On 30 November 2015, Michael Nolan, an employee of Meriton Apartments, was terminated from his role as a result of public comments he had made on Facebook. Mr Nolan's profile photo showed him wearing a shirt displaying the Meriton Apartments' Logo.
On 27 November 2015, Mr Nolan commented on a post by popular feminist commentator Clementine Ford. Mr Nolan called Ms Ford 'a sl**'. Shortly after Mr Nolan made the comment, Ms Ford 'replied' to Mr Nolan, tagged Meriton Apartments and sought their input regarding Mr Nolan's comment, noting that he was an employee. Thereafter, Ms Ford was notified by Meriton Apartments that Mr Nolan no longer worked for the company, with Meriton Apartments stating that his views did not align with the views of the company, and stated that Mr Nolan's comments were not only against the conduct found in the social media policy but that his comments had brought the company into disrepute.
Israel Folau and Rugby Australia
We could not write about this topic without mentioning this www.colemangreig.com.au/BlogPost-1273-israel-folau-vs-rugby-australia-izzy-or-izzy-not-in-breach-of-contract.aspx well-known case (especially in light of the Rugby World Cup). Without putting too fine a point on it, Rugby Australia and associated entities formed the view that Mr Folau's Twitter post was offensive (it was not the first time that Mr Folau had been warned by Rugby Australia about making such posts) and warranted termination, as it had brought the company and the game of Rugby into disrepute. They stated that Mr Folau's actions were in direct breach of Rugby Australia's social media policies and given that he had previously been warned about such behaviour, the post warranted termination. While the termination is still subject to ongoing court proceedings, it is yet another reminder of the importance of ensuring that your social media policy is up to date and that your employees are educated about such policies. Employees need to be aware of the do's and don'ts of their employer's social media policy.
Aside from trying to be more respectful to one another online, the importance of an updated social media policy, that is well understood by your employees, is pivotal in ensuring that you have the right to terminate employees as a result of their actions on social media.
Staff can often find it difficult to walk the line between appropriate posts and not being dull and boring, particularly in competitive (and 'loud') marketplaces. A social media policy will not only assist in the regulation of employee conduct that is offensive but may also assist with targeted and strategic marketing. The above cases also highlight the need for employers to have a workplace policy regarding social media and which applies to activities outside of work hours and ensure that all employees are aware of and agree to be bound by, the policy. Even if a policy is in place, some long-term staff may not have ever been shown a company's policy, which can lead to issues if it is sought to be relied on.
The case of Linfox Australia Pty Ltd v Glen Stutsel  FWAFB 7097 reiterates the importance of updated policy, where Linfox was unsuccessful in their attempt to terminate an employee because they did not have a social media policy in place at the time of termination. Before terminating, it is important that the employer offers the employee an opportunity to explain their actions. The Fair Work Commission has supported the notion that employee behaviour that brings an employer into disrepute is a basis for termination, but it is an area for care and proper process is still required.
The Fair Work Commission will ask whether the complained conduct will;
- when viewed objectively, is likely to cause serious damage to the relationship between the employer and the employee;
- damage the employer's interests; and,
- is incompatible with the employee's duty to the employer.
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.