In recent times, social media has shifted workplace dynamics by becoming an increasingly used tool for organisations to expand their business, but there are also employment-related issues that need to be addressed.
With the limitless commercial potential, including opportunities to increase client base, branding, advertising and even recruiting staff, coupled with the growing trend of smart phones, organisations can extend their reach beyond the usual ‘9–5’ business hours, in turn making the business and its employees accessible 24/7.
However, the use of social media is not without risk. The accelerated use of social media is blurring the line between what constitutes actions in the workplace and what is considered ‘personal’. Use of social media outside the workplace may negatively impact the employer’s business and has resulted in employers having to determine the appropriate level of restriction or, as the case may be, the appropriate level of encouragement (of course under confined guidelines).
What are the risks?
The risks associated with poorly managed or non-existent management of social media use are numerous. Not only can there be issues with decreased productivity, which would be at the forefront of many employer’s minds, there are also concerns surrounding inappropriate conduct that can negatively impact on brands or may lead to bullying and harassment and disclosure of confidential information (whether deliberate or not) and even defamation.
Further, there are risks associated with disciplining employees who inappropriately use social media on a ‘personal’ level. Out-of-hours conduct through the use of social media can have a destructive impact on businesses especially when comments and posts can become viral in a matter of seconds.
Example 1: In O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys  FWA 5311 (11 August 2011), the Tribunal rejected a disgruntled employee’s unfair dismissal application despite the Facebook comments posted by the employee were out of hours and on his home computer. The employee posted a disparaging comment about the employer, which was read by work colleagues. The employer dismissed the employee who argued that his Facebook page made no reference to his employer and only 70 people could access the comment. The employer submitted that 40% of his staff were female and that the language used in the comment amounted to harassment and was threatening to his female staff.
Example 2: In Dover-Ray v Real Insurance Pty Ltd  FWA 8544 (5 November 2011), the Tribunal rejected an employee’s unfair dismissal claim, after she was dismissed following a disparaging blog about the employer on her MySpace page in which she called management ‘witch hunters’ and ‘corrupt’, alleged that the company’s values were ‘absolute lies’ and revealed confidential information about the investigation. The employer requested that the employee show cause and remove the blog but she refused to do so. The employee argued only her friends could access the material; however, some of those included work colleagues. The Commissioner said ‘it is enough that her “friends” included other employees of Real because (even if it had such a restriction) it could reasonably be expected that a document of such controversy would be circulated within the workplace’. The Tribunal found that writing the blog and the employee’s failure to take it down, were valid reasons to terminate her employment.
Example 3: By contrast, in O’Connor v Outdoor Creations Pty Ltd  FWA 3081 (24 May 2011), the Tribunal held that an employee was unfairly dismissed due to lack of evidence of excessive social media use during work hours. The employee was working out his notice period when the employer accessed his work computer and discovered he had been excessively engaging in Google Mail’s chat service during working hours. The employer summarily dismissed the employee on the grounds of theft as he was accepting payment for work without completing any during his ‘chat’ time. Excessive use was denied by the employee. Because neither party provided independent evidence about the use of the internet during working hours, the Commissioner stated that while the ‘excessive use of the internet for personal purposes may constitute misconduct there is insufficient evidence to establish that [the employee] was in fact guilty of misconduct’. Further, the employer did not put the allegation to the employee for response.
What should employers do?
It is clear that with the risks employers face, they need to focus on how they can legally and reasonably control employee’s access to social media to prevent any damage to their business. To combat the risks of inappropriate social media use, businesses should adopt a social media policy that provides strict guidelines on the use of social media at the workplace and out of hours, and outlines employees’ responsibilities including in relation to bullying and harassment and confidentiality.
The policy should be aligned with other business policies and should include:
- a definition of inappropriate use
- the employer’s expectations around social media in the workplace and acknowledgement that comments made in private accounts out of hours may result in disciplinary action — employees need to acknowledge that what they may perceive as their personal posts or comments are not necessarily private and may still be considered related to their work
- a clear statement that an expectation of privacy is non-existent if there is a sufficient connection to the workplace and that access will be monitored (if available and in accordance with the relevant surveillance legislation.
- reiteration of obligations around the use of confidential information.
- clearly set out consequences of inappropriate social media use.
[Note: This is for information purposes only. It does not purport to be comprehensive or to render legal advice.]