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Unfair Dismissal Case Highlights the Importance of Social Media Policy

October 27, 2010

A recent decision of Fair Work Australia should highlight to employers the importance of having a social media policy in the workplace.

The background to the case is that a Melbourne hair-dresser who, amongst other reasons, was dismissed after talking disparagingly about her employer on Facebook has successfully argued that her termination constitutes an unfair dismissal. The hairdresser was successful on arguments other than the Facebook issue, but the case still raises important issues about the use of social media by employees.
Commissioner Bissett made the very important observation that: “Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.”

Employees should not be under the false impression that their Facebook postings are private, even if their privacy settings are reasonably tight. Any ‘friend’ on Facebook can simply copy and paste those comments, and they can be passed on indefinitely. Employers also need to be aware of this and understand that their employees are in fact, engaging in social media increasingly, both during and outside of work hours. Employers should take this into account when making business decisions, particularly around the management of employees in this medium.

As an employer, there is already some recourse to a legal remedy for certain employee behaviour outside of normal working hours. The principle from Rose v Telstra may apply. That is, an employee can be held responsible for behaviour outside working hours if it breaches an express term of the employment contract.

Implications for Employers
In this particular case, the comments made on Facebook were not deemed to be harsh enough to warrant the employee’s dismissal. However, in many cases , comments on Facebook and other social media sites will be damaging and harsh enough to cause the employer to consider dismissing the employee. It is important therefore that employers effectively communicate concerns about potential damage to its business as a result of its employees making inappropriate commentary. Such communication should inform the employee of what is expected in relation to this activity and to highlight some of the pitfalls where the use of the sites may fall foul of employment obligations. In short, employers must have a comprehensive social media policy in place.

Unfortunately, most Australian businesses do not have a social media policy in place. Consequently it can become problematic, no matter how serious a social media blunder may be, to terminate employment within the law.

Please note, this is a guest post, co-authored by Danica Leys and Andrew Bland of BlandsLaw

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