This month we look at employee use (or misuse) of social media. We examine some recent cases and highlight some tips for employers to help manage similar issues.

Social media – where are we now?

There has been growth in the number of Court cases relating to the use (or misuse) of social media by employees.

This is not surprising given the current statistics on social media use. According to recent findings :

• almost 9 in 10 people have a social media profile in Australia;
• out of a total population of 25 million, over 15 million Australians have an active Facebook page;
• use of Instagram, Snapchat, LinkedIn and Twitter have also consistently increased, with between 5 to 9 million active users per month.

What these statistics tell us is that employers cannot ignore the impact of social media on their business.

Employers must be proactive in setting and managing expectations around employee use of social media in and/or in connection with employment.

A failure to do so can expose your business to significant legal risk. Reputational harm, defamation, poor workplace culture, bullying and harassment, workplace health and safety and negligence are just some of the issues that can arise if social media use is not properly managed.

So, let’s take a look at what we can learn from some of the recent cases and then consider some tips to help manage social media use by employees in and/or in connection with the workplace.

Israel Folau v Rugby Australia

By now most people would have heard about the sacking of Rugby Australia player, Israel Folau, following his controversial social media post on Instagram which read:

“Warning: Drunks. Homosexuals. Adulterers. Liars. Fornicators. Thieves. Atheists. Idolaters. Hell awaits you.”

Folau filed legal proceedings against Rugby Australia and the NSW Waratahs in the Federal Circuit Court, alleging unlawful dismissal on the basis of his religious beliefs.

Rugby Australia is contesting the claim and says that Folau was not dismissed because of his religious beliefs but rather because his actions contravened his Employment Contract and their Code of Conduct.

Whatever position one takes on the actual content of Folau’s social media post, the outcome of this case (which is listed to be heard in February 2020) will likely raise some important issues for employers to consider when dealing with employee use of social media.

For instance, when can an employer terminate an employee’s employment for expressing their personal views on social media? How much control can (or should) employers be allowed to exercise over their employee’s private activities?

Aitken Legal will keep you informed about developments in this case as they unfold.

Rumble v HWL Ebsworth

In the meantime, the recent decision in Rumble v HWL Ebsworth may provide some insight into how the Court will likely determine the Folau case.

The Applicant in this case was a former consultant to law firm HWL Ebsworth, who alleged that he was dismissed because of his political opinions (amongst other claims).

The firm alleged that this was not the case, rather he was dismissed because it had a policy in place that required employees not to criticise clients of the firm.

The Applicant had made ‘public’ criticisms of two clients (Government departments) in breach of the policy. He countered that he was entitled to make these comments publicly and the decision to dismiss him on the basis of his political opinions was therefore unlawful.

The Court disagreed, finding that the Applicant was terminated not because of his political opinions but rather because he repeatedly disobeyed a reasonable direction to cease from criticising the firm’s clients, in breach of policy.

Only time will tell whether similar reasoning will be applied in the Folau case – i.e. was he dismissed because of his religious beliefs or because he deliberately breached a workplace policy.

Murkitt v Staysafe Security

A recent case in the Fair Work Commission raises some additional important considerations on this issue.

The Applicant was dismissed for serious misconduct after making derogatory comments about the employer’s Directors on Facebook, in breach of its social media policy.

The Applicant filed an unfair dismissal application alleging that the dismissal was harsh, unjust and unreasonable.

This case is interesting because the Commission did not adopt the reasoning given in the Rumble v HWL Ebsworth case.

While the Commission found that the employee had breached the social media policy (as occurred in Rumble), it was not persuaded that this justified summary dismissal.

In particular, the Commission took into consideration the fact that the employee was suffering from a psychological

condition at the time of the conduct which the employer had not given proper weight to. It also considered that the employee’s otherwise unblemished work history and length of service made the dismissal unfair.

This outcome can be contrasted to the decision in an earlier case (Georgia Sologinkin v Cosmetic Suppliers, March 2017) in which the Commission found that irrespective of an employee’s 15 years of unblemished service, the employee’s making of disparaging, derogatory and offensive comments about the employer’s clients in an email (that was then circulated to the clients) did justify summary dismissal for serious misconduct.

Tips for Employers

There are a number of inconsistencies in this area and some uncertainty is likely to continue given the constantly evolving nature of social media, the multiplicity of issues that this raises for employers and the unique circumstances that may arise in each case.

Nevertheless, there are some standard tips that employers can follow to help manage social media use by employees in and/or in connection with the workplace.

• Employers should have a Social Media Policy. This should operate in conjunction with an Internet and Email Usage Policy and a Discrimination, Harassment and Workplace Bullying Policy.
• The policies should make employees aware of the employer’s rules and requirements of social media use and the consequences for breach of the policies should be made very clear.
• Staff should be provided with regular training and constantly reminded that social media posts are a lot more public and permanent than staff room or water cooler gossip.
• Employment contracts should be updated to ensure appropriate coverage of social media use and its relation to confidential information and data security.
• When faced with potential employee misuse of social media, employers need to understand that each case is different and may have complex issues to consider.
• Employers must consider the nature and seriousness of the conduct; whether the conduct breaches any contractual obligations or workplace polices and the nature and extent that the conduct damages the employment relationship and/or the employer’s business interests.
• Employers must ensure there is a valid reason formed by a thorough consideration of all the relevant issues prior to terminating an employee for inappropriate social media comments.

While this is by no means an exhaustive list, if employers follow these tips they will significantly improve their business’ resilience to the potential fall-out effects of improper social media use by employees.

Contact us for assistance

Aitken Legal can assist employers by reviewing their current workplace practices to identify where improvements can be made. This could include drafting Employment contracts, social media or other policies, delivering training to staff and/or coaching employers around best-practice tips in more detail.

Aitken Legal can also help you manage particular circumstances of potential misuse of social media by an employee.