|Employers who take disciplinary action against an employee for posting damaging or inappropriate comments on social media sites such as Facebook can face legal — and, potentially, costly — ramifications, if they do so without following basic workplace laws and procedures, according to a Sydney IR lawyer.
With social media increasingly infiltrating the workplace, employers must introduce appropriate procedures to avoid litigation in this area.
According to Ms Jenny Inness, senior associate at Harmers Workplace Lawyers, a specialist workplace law firm, employers should first consider whether the employee’s conduct is sufficiently connected to the employment relationship before taking action in response to erring employees in the digital sphere.
Ms Inness said that an employer’s right to take action for ‘after hours’ conduct has always been a complex issue. ‘It’s a tricky balance between an employee’s right to privacy and an employer’s right to protect its organisation,’ she said.
She said that an employer is permitted to take action against an employee (including dismissal) because of their ‘after hours’ (or ‘private’) activities, if the conduct is connected with the relationship of employment and has serious enough implications for the employer.
‘Social media has certainly upped the stakes for employees making damaging comments about their companies, as it is such a visible public forum. It’s becoming increasingly common for employees to use social media sites to criticise their place of work, or a colleague, or boast about things like going to the beach on a day when they have called in sick,’ Ms Inness said.
‘Employees have obligations of good faith to their employer, and this type of activity can breach that duty of good faith.’
‘While an employee’s actions may be inappropriate, and potentially damaging to a company’s reputation, employers must still follow basic workplace rules before taking disciplinary action,’ she said.
Ms Inness cited a recent case in Australia where the court had rejected social media ‘posts’ as a reason to simply dismiss someone for the misdemeanour. This resulted in compensation orders against the employer, highlighting the fact that this can also be a costly exercise for employers who ignore the proper procedures.
The recent case involved a Melbourne hairdressing salon that was ordered to pay more than $2000 for unfairly dismissing an employee for comments made on Facebook.
‘There are obviously instances where dismissal may be an acceptable course of action following comments made through social media, but only when it has serious implications for the company or its personnel,’ Ms Inness said.
‘In instances where social media posts are not directly related to the company, or in the ‘personal realm’, it can be difficult to make a case.’
Reasonable grounds for disciplinary action
Instances where employers may have reasonable grounds for disciplinary action against an employee include social media posts that:
harm or damage the company’s reputation and business interests
disclose confidential information to others outside the business
harass or bully work colleagues
disparage customers or clients of the business.
Ms Inness said the challenge for business is how to make the consequences of these activities clear to employees.
She suggested that all employers should have a social media policy that clearly articulates what is acceptable behaviour in relation to employees’ social media engagement and clearly explain the impact this behaviour might have on their organisations.
‘For employers, it is important to understand the parameters of the law and their rights to take action against employees using social media inappropriately. For employees, they should be aware of the potential implications of their social media engagement in relation to their employment,’ said Ms Inness.
Practical advice for employers
Practical advice for employers on managing their employees’ social media engagement:
Implement a social media policy and clearly communicate it to your employees.
Remind employees of their obligations to their organisation. This includes an employee’s duty of good faith, and their obligations regarding confidentiality and harassment.
If taking disciplinary action, ensure that the employee’s conduct is sufficiently connected to the employment.
Ensure any damaging posts on Facebook or similar social media posts are quickly removed, to limit any damage to the company’s reputation.
Regularly evaluate your systems and policies to keep up to date with the rapidly changing social media landscape.