Social media consideration before termination

As the last week of most people’s working year comes upon us don’t be surprised to find some of your employees using social networking sites such as Facebook or Twitter to display their displeasure or air their grievances about their managers, co-workers or the organisation.

There have been a number of cases before Fair Work Australia (FWA) during 2011 that demonstrate that many of the inappropriate actions of employees in relation to social networking have not actually taken place ‘at work’.

In Mr Damian O’Keefe v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys [2011], Mr O’Keefe’s employment was terminated following his highly abusive comments in relation to suffering delays in the payment of a bonus. FWA confirmed the manner in which Mr O’Keefe went about airing his frustrations warranted dismissal and his approach to making the comments via his home computer and out of work hours did not make a difference.

Issues taken into consideration by FWA were:

  • The public nature of the comments, even though he made them to his ‘Facebook friends’, many of them were work colleagues.
  • The abusive and threatening language breached the company’s values of courtesy and respect.
  • There were other avenues in which his grievance could have been aired within the company and these were known to him.
  • The comments were detrimental to the employers business.

It is important to know that in certain circumstances you have the capacity to terminate an employee’s employment or to manage their performance for out-of-hours conduct. To be on sure footing here, what must be established is a sufficient link between the conduct and the employment relationship. For example you must be able to establish that the conduct:

  • is likely to cause serious damage to the relationship between the employee and employer.
  • damages the employer’s interests, or
  • is incompatible with the employee’s duties as employee.

Warnings should be taken from the FWA Full Bench decision in Dianna Smith T/A Escape Hair Design v Sally-Anne Fitzgerald [2011].  That decision demonstrates the limitations in terminating an employee for conduct outside of work. The employee expressed her annoyance on Facebook at receiving a lesser bonus than she expected and receiving part of her holiday pay by cheque. She posted the comment: “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!”   FWA held that whilst the comments were foolish, they were inaccurate and the employee had not named the salon. FWA held that the Facebook comments could not be considered to be detrimental to the employer’s business and as such there was no valid reason for dismissal.

In reflection of these cases it is imperative that organisations take steps to ensure that they have in place clear, transparent and enforceable social networking policies and strategies.

Advice for employers:

  • Ensure you have a social networking policy that addresses:
    • Use during work hours
    • Use outside working hours
    • Use through employee’s own technology
    • How employees can use the sites
    • List specific inappropriate uses
    • Monitoring of employees’ access
    • The consequences for non-compliance
  • Update other relevant policies such as recruitment, discrimination/bullying and IT policies to reflect the use of social media.
  • Consider including in employment contracts specific clauses in relation to social media.
  • Ensuring induction programs cover the use of social media and the related policies.
  • Providing training and awareness sessions when policies are updated.
  • Ensure grievance and investigation training is provided for line managers and HR staff to ensure procedural fairness is always applied.

Where there is a breach:

  • Consider whether there is a sufficient link between the conduct and the employment relationship before taking any disciplinary action.
  • Take into account the surrounding circumstances, including the employee’s length of service, previous performance or disciplinary issues, reasons given, and whether there was a clear policy in place at the time of the incident.
  • Don’t make the decision to terminate before all relevant information has been gathered and considered – thoroughly investigate issues, and ensure procedural fairness is afforded when performance managing, or considering the termination of, an employee for the inappropriate use of social media.

For more information on how we can assist you with your organisational policies, employment contracts or staff training feel free to contact us !

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