Social Media Policy – a shield and a sword

It’s vital to have a Social Media Policy in place and ensure your employees understand what it means, with social media becoming such an integral part of running a business. Media stories about employees putting their employment at risk through their social media posts seem to have increased in recent months.

You may be familiar with the Football player who had his contract cancelled due, at least in part, to the content of his social media posts. More recently the High Court has determined a matter involving a Federal Public Servant who was dismissed for expressing views inconsistent with those of her employer, in social media. A twist to this story is that the posts were through an alias. The High Court in that case upheld the dismissal of the employee.

Do the above cases mean that the law is now clear as to when social media posts can be used to justify the termination of someone’s employment? Oh, if only! These high profile cases may lead some to believe that terminating the employment of an employee who posts material on social media which is derogatory of the employer, is disrespectful of the employer, their employees or clients or which is in breach of their Code of Conduct is safe ground. That is not the case.  A recent decision of the Fair Work Commission (FWC)[1] reinforces the requirement that employers must consider each and every disciplinary matter in context and sometimes ‘having a go at the boss and/or the business’ on social media, is insufficient to justify termination of employment. 

In this case, an employee took to social media to vent her disappointment with a new owner of the business she worked in, she described her job as “thankless” and said that the directors “don’t care for clients, they don’t care for their staff, really, really, really sad”. The FWC in hearing the unfair dismissal application, found that the employer had a valid reason for terminating the employment of the employee, however they also found that the decision to terminate the employment was “harsh” in the circumstances. Those circumstances being it was a one off event, the employee was on workers compensation at the time (for a psychological illness) and she had an unblemished employment history going back 15 years.  

One of the circumstances that will always be relevant is whether or not the employer has a policy in place about social media and whether or not employees know about the policy and understand what is, and what is not, considered to be acceptable. In the absence of a policy, only the most extreme social media posts are likely to be considered a valid reason for termination of employment.  Although having a policy and training employees on the policy  is very important, the message from the FWC is that even in the case of a clear breach of the policy, the appropriate penalty must be determined  on  a case by case basis after considering all of the relevant circumstances.

If you need any assistance with your social media policy, staff training or making sound decisions where there is a breach, contact Cheryl-Anne Laird, Partner of our Human Resources division, on:

Brisbane 

Melbourne

Sydney

+61 7 3218 3900

+61 3 9252 0800

+61 2 9922 1166

Please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice.

[1] Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622 (16 August 2019)

Published 4 September 2019

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