The social media conundrum: why organisations need a clear policy

There have been a number of recent unfair dismissal cases involving the termination of the employment of employees because of what employees have said on social media websites. These cases, including the two referred to below, have highlighted that without a clear social media policy, employees may be confused about what they can and cannot write on social media websites. This may lead to employees making comments which results in them losing their jobs and employers facing costly litigation and negative publicity where they seek to take action against these employees.

Damian O’Keefe v William Muirs Pty Ltd t/a Troy Williams the Good Guys [2011] FWA 5311

In this case, the Good Guys was found to have fairly dismissed Mr O’Keefe on the basis of Mr O’Keefe’s Facebook posting. Mr O’Keefe did not dispute that he had posted the comment “[expletive] work still haven’t managed to [expletive] pay me correctly. [Expletive] are going down tomorrow”. However, Mr O’Keefe claimed that he made the posting on his home computer, out of business hours, and his posting was set to the maximum privacy settings allowable on Facebook (although he admitted late in the court proceedings that approximately 11 colleagues could see his comments). Mr O’Keefe also claimed that his posting could not be linked to his employment as there was no mention of the Good Guys (although he had admitted in the investigation of the incident that the comment was directed at a colleague in charge of employee wages, Ms Taylor).

The Good Guys dismissed Mr O’Keefe because in its view his comments constituted sexual harassment and threatening behaviour towards Ms Taylor. The Good Guys did not have a clear social media policy in place, although the comments breached the Good Guys’ workplace policies on communication with colleagues, sexual harassment and bullying.

Deputy President Swan upheld the dismissal and agreed with the Good Guys’ view, stating, “The manner in which the threat was made and the words used provided sufficient reason for the respondent’s dismissal of the applicant on the grounds of serious misconduct.” Deputy President Swan also said that it did not make a difference that Mr O’Keefe made the comments on his home computer or out of business hours and that “the separation between home and work is now less pronounced than it once used to be”.

Glen Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444

In this case, Linfox was found to have unfairly dismissed Mr Stutsel on the basis of Mr Stutsel’s Facebook posting. Mr Stutsel did not dispute that he had posted the following comments on his Facebook page:

• That one of his colleagues, Mr Michael Assaf, who was a Muslim, was a “bacon hater”;
• A comment about terrorists and the death of a terrorist; and
• A comment: “I admire any creature [a bear] that has the capacity to rip Nina and Assaf heads off, [expletive] down their throats and then chew up and spit out their lifeless body.” This comment referred to his colleagues Ms Russell and Mr Assaf.

Mr Stutsel claimed that his postings were set to the maximum privacy settings allowable on Facebook and that the postings were in a private correspondence with a few of his Facebook friends, rather than on his public Facebook wall. Mr Stutsel claimed that his comments were not directed at Ms Russell or Mr Assaf and that he did not intend them to see his comments (as they were not his Facebook friends). Mr Stutsel considered that his comments were general ‘banter’ of a private nature between him and his specific Facebook friends.

Commissioner Roberts agreed with Mr Stutsel and stated that the comments were like a group of friends letting off steam at a pub. Specifically in relation to the above comments, Commissioner Roberts noted that:

• the first comment was not a racially derogatory remark intending to offend or racially vilify Mr Assaf because it could be used in relation to other religious groups apart from Muslims;
• in relation to the second comment, it was “a bridge too far in my opinion to make a connection between those comments and any personal attack on Mr Assaf”; and
• in relation to the third comment, “I do not believe and do not accept that she [Ms Russell] believed that ursine material ... the material was an attempt at humour and in my view did not contain any credible threat to Ms Russell’s wellbeing.”

Linfox did not have a social media policy in place. While Commissioner Roberts acknowledged that Mr Stutsel’s comments may be considered disgusting, they were not threatening, did not breach any relevant Linfox workplace policy and therefore there was no valid reason for his termination. Consequently, Mr Stutsel was reinstated to his former position.

What does this mean for employers?

These two cases, widely reported on in various media circles, highlight the importance of employers having a clear social media policy covering an employee’s use of social media websites. In the Linfox case, Commissioner Roberts said: “In the current electronic age, this [not having a social media policy] is not sufficient and many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies.”

In both of the above cases, if the respective employers had such a policy in place and the employees had received regular training on the policy, it is likely that the employees would have been clear about what they could or could not write on these websites. On that basis, it is arguable that Mr O’Keefe and Mr Stutsel would not have made their comments and put their employment at risk. Importantly, if neither of the comments had been made, the negative publicity and brand damage to both employers would also not have followed.

If employers do not already have a social media policy in place, now is the time to implement one. When drafting a social media policy, it is important that employers consider, amongst other things, that the policy:

• incorporates a clear definition of social media websites (as developments are occurring rapidly in this area, this definition may need to be revisited regularly);
• is consistent with the employer’s own approach to how it uses social media websites, for example, the language and methods it adopts for its advertisements and communications with its customers;
• is consistent with the employer’s values, reputation and other workplace policies (particularly those relating to bullying, harassment, discrimination and confidentiality);
• contains a clear definition of who the social media policy applies to;
• sets out when social media websites can be accessed;
• clarifies what employees can and cannot write on these social media websites and whether they are authorised to represent the business in any of their comments on these social media websites;
• may include a positive obligation on employees to report any breach of the policy by other employees; and
• sets out disciplinary procedures for a breach of the policy.

In addition to the contents of a social media policy, particularly due to the developing nature of social media websites, it is important that the policy is regularly reviewed and employees receive regular training on the policy.