Personal expression, professional pain: social media and the workplace

It is now clear that social media is not, as many were predicting when it first emerged, a short-lived fad. With over 1.44 billion active users on Facebook alone, ^[1]  it is clear that the use of social media is prevalent to the point of universal.

In Australia, the statistics reflect this phenomenon, with 14 million Australian Facebook users spending on average 8.5 hours per week on the site. Other social media platforms such as LinkedIn and Twitter have approximately 3.5 million and 2.7 million Australian users respectively. ^[2]

It is therefore not surprising that almost all employees in Australia use at least one of these major social media platforms. Just as employees are tapping into the world of social media, employers are also increasingly seeking to harness the power of social media as an instrument for promoting their businesses, and a way of developing their reputations as progressive brands, for recruitment purposes.

However, along with social media’s enormous power to facilitate expression and connection comes potential risks and problems. These risks and problems should not be overstated. They do not negate or overshadow the benefits that can be derived from effective social media use but they do, however, need to be carefully considered and managed by employees and employers alike.

These issues are not just the domain of legal journals or learned academic works. The mainstream media is, on a regular basis, replete with cautionary tales of social media use gone wrong and active debate about the appropriate balance to be struck between freedom of speech and the need to preserve professional reputation.

Social media risks: a football commentator turns social commentator

A recent case in point is that of football commentator Scott McIntyre and the public broadcaster SBS. In April 2015, Mr McIntyre was dismissed from his employment at SBS after he posted a series of tweets on Anzac Day which questioned aspects of the annual day of remembrance. These tweets quickly became a matter of controversy.

SBS Managing Director, Michael Ebeid, provided the following reasons for Mr McIntyre’s dismissal. ^[3]

"Mr McIntyre’s actions have breached the SBS Code of Conduct and social media policy and as a result, SBS has taken decisive action to terminate Mr McIntyre’s position with immediate effect. At SBS, employees on and off air are encouraged to participate in social media, however maintaining the integrity of the network and audience trust is vital. It is unfortunate, that on this very important occasion, Mr McIntyre’s comments have compromised both."

Mr McIntyre has subsequently commenced proceedings which, at the time of writing, are yet to be heard and determined.

In the days following the tweets and the subsequent termination of Mr McIntyre’s employment, this episode was canvassed widely on both social media and in the mainstream media.

The inherent conflict: freedom of expression and duties to the employer

The McIntyre episode was the catalyst for an active debate about reconciling the important notion of freedom of speech with the obligations that employees owe to their employers.

At one end of the spectrum is the view that employees should be able to say what they want, where they want and as frequently as they want, on the basis that social media activities are a personal matter separate to employment.

At the other end is the view that whatever the employee tweets or posts is something an employer always has the prerogative to regulate as it sees fit.

Not surprisingly, the relevant principles support neither of these extreme positions. This is no great revelation. The real question is: at what point does an employee’s “private” posting or tweeting become a matter of legitimate concern for the employer whereby it may be able to take disciplinary action against the employee? As with almost all matters relating to employment law, this question can only be determined on a careful consideration of the circumstances of each individual case. However, there are some guiding principles that do assist.

These guiding principles have been developed from the cases that have already been determined in relation to social media and employment. The episode involving Mr McIntyre and SBS, while garnering much media attention because of the high profiles of the parties involved and the controversial nature of the tweets in question, was far from being the first incident of this kind. Indeed, the Fair Work Commission (FWC) has had to grapple with these issues for a number of years by virtue of them arising frequently in the workplace.

An examination of these cases acts as a useful guide as to the way in which social media issues should be managed, emphasising the need for sound policies to clearly outline risks and expectations and also to emphasise the importance of proportionality of response.

The issue of proportionality forms part of the analysis in a recent book by well-known author Jon Ronson, "So You’ve been Publically Shamed". ^[4] Ronson’s thesis is broadly that the shame and opprobrium heaped upon some individuals for wrong doing or insensitivity on social media can be grossly disproportionate to the original offence. While Ronson’s book is more about the nature of the response of the general public (and particularly those on social media), it is a matter that employers may want to carefully consider as well. The mere fact that some people active on social media, or indeed, in the mainstream media, might be offended by particular statements does not give the green light to an employer to terminate the employment of the employee who has posted or tweeted the offending comments. In order to justify such a termination to the FWC, it is important to be able to demonstrate a connection to employment and a demonstrable adverse impact on the interests of the employer.

With that in mind, we explore below some of the case law relating to social media and employment determined by the FWC.

Recent case law

Inappropriate use of Facebook account

In Little v Credit Group Ltd. ^[5]  Mr Little was summarily dismissed for serious misconduct following his employer becoming aware of comments Mr Little had posted on Facebook.

Christians Against Poverty (CAP) was an organisation with which Credit Corp Group and its employees, including Mr Little, had frequent professional dealings. Mr Little, however, also had other dealings with CAP by twice posting negative comments on its Facebook page.

Mr Little also greeted a friend who had joined Credit Corp Group by posting an announcement on his own page containing sexually suggestive content.

Mr Little challenged the termination of his employment in the FWC on the basis of unfair dismissal.

Mr Little argued that his Facebook page was private and made no reference to Credit Corp Group as his employer. While he conceded that the comments he made on Facebook were highly critical of CAP, he disagreed that it was inappropriate for him to have made these comments and that, in any event, he had never previously been warned for expressing an online opinion (although he accepted he had been issued with an early warning for posting an inappropriate comment on a non-work related website during business hours).

Credit Corp Group argued that Mr Little had acted in breach of cl 7.9 of the Employee Handbook which related to social media website usage.

FWC Deputy President Sams found there was a valid reason for the termination of Mr Little’s employment on the basis that his conduct seriously damaged the relationship between him and his employer, damaged Credit Corp’s interests, potentially damaged the relationship between Mr Little and other employees, was incompatible with his duty as an employee, and constituted serious misconduct. Deputy President Sams held that the applicant’s dismissal was not “harsh, unjust or unreasonable” and the application for unfair dismissal was denied.

Failure to remove a derogatory comment on MySpace

In Dover-Ray v Real Insurance Pty Ltd, ^[6]  Ms Dover-Ray made an allegation of sexual harassment against her manager that was investigated by her employer (Real Insurance) and found to be unsubstantiated. Following this, Ms Dover-Ray posted a comment on her MySpace page criticising her employer’s conduct of the investigation and referring to her employer as “nothing but witch hunters”.

Real Insurance sent Ms Dover-Ray a show cause letter requesting that the comment be removed. Ms Dover-Ray refused and lodged an unfair dismissal claim with FWC. In response, Real Insurance lodged a Notice of Representation stating that Ms Dover-Ray had not been terminated and she was free to return to work at any time, if she removed the blog post.

Ms Dover-Ray argued that the blog post did not identify Real Insurance and that she could have been referring to an incident in her personal life. Commissioner Thatcher found that while the blog didn’t identify Real Insurance by name, it did identify Ms Dover-Ray, it was dated and it related to her workplace experience. On this basis, it would have been clear to anyone who knew Ms Dover-Ray that she was referring to her employer.

Ultimately, Commissioner Thatcher found that there was a valid reason for dismissal on the basis that the conduct of the employee in publishing the comment and refusing to modify or remove it was a breach of her implied contractual obligations.

Reputational damage allegedly caused by Facebook post

In Fitzgerald v Dianna Smith t/as Escape Hair Design, ^[7] a derogatory comment was made by Ms Fitzgerald, a hairdresser, against her employer. The employee was aggrieved that she would not be receiving a Christmas bonus and posted a job warning on her Facebook page with the comment: “… no holiday pay!! Whoooooo! The Hairdressing Industry rocks man!! AWSOME!!! [sic]' ^[8]

Escape Hair Design terminated Ms Fitzgerald’s employment 1 month after the Facebook post on the basis that the comment was on a public forum that could quickly gain notoriety and cause a negative effective on the reputation of the business. Ms Fitzgerald subsequently lodged an unfair dismissal claim.

Commissioner Bissett ultimately found in favour of the employee, concluding that the comments made by the employee were not such as to cause reputational damage to the employer and the delay in Escape Hair Design terminating Ms Fitzgerald’s employment was evidence that it did not consider the post to have damaged the employment relationship to such an extent that immediate action was required.

Commissioner Bissett did, however, comment upon the public nature of social media and wisely urged employees to exercise caution when using social media: ^[9]

"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 … It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences."

Managing social media risks

One of the most effective ways to manage social media risks is to implement a social media policy. An effective social media policy can enable employers to exercise control over the social media use of its employees by clearly stating the expectations of the employer, the employee’s obligations (such as refraining from posting disparaging comments about other members of staff and maintaining duties of confidentiality) and the conditions of use. But what can these policies validly regulate? And how can an employer enforce them? 

The Linfox case

The enforceability of social media policies was recently considered in the case of Pearson v Linfox Australia Pty Ltd, ^[10] in which Mr Pearson was dismissed for refusing to follow a direction to consent to a social media policy.

Mr Pearson had been employed since January 2007 and had been engaged at different distribution centres managed by Linfox. From 13 July 2012, Mr Pearson was issued a series of warnings, both written and verbal , for several breaches of Linfox’s workplace policies, and refusing to sign an acknowledgement to the effect that, “I _______ have read and understand” the relevant social media policy. Mr Pearson crossed out the word “understand” and in the signature space, wrote, “refused to sign”.

On 21 May 2013, Linfox terminated Mr Pearson’s employment, and Mr Pearson subsequently commenced proceedings for unfair dismissal.

Was it reasonable for the employer to require compliance with its social media policy?

Before the commission, Mr Pearson argued that he refused to sign the social media policy as it applied outside of working hours and. ^[11]

… as Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech…

Commissioner Gregory declined to specifically address whether the policy breached Mr Pearson’s individual rights, but delivered a resounding endorsement of the social media policy, including its application outside working hours. ^[12]

"… the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business. It also serves a useful purpose by making clear to employees what is expected of them. Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees.

… it is difficult to see how a social media policy designed to protect an employer’s reputation and security of the business could operate in an “at work” context only."

Accordingly, Commissioner Gregory found that Linfox had acted neither unreasonably nor unlawfully in requiring the employee to sign the social media policy acknowledgement. Commissioner Gregory held that Linfox’s decision to terminate Mr Pearson’s employment was not harsh, unjust or unreasonable, given his repeated breaches of other policies and Linfox’s efforts to ensure its policies, and the consequences for breaching them, were clear and understood. Accordingly, the application was dismissed.

Employer’s social media policies: getting the balance right

There is a tension in the use of social media between the employee’s inherent right to freedom of expression, and the idea that what an employee does in their “downtime” is separate to their employment, and an employee’s obligations to their employer, such as duties of confidentiality.

A well drafted social media policy will draw a distinction between use of social media for and on behalf of the employer, and the use of social media in a private context. An employer will naturally have a greater level of control over the former than the latter. Social media policies that have one set of rules that purport to apply to both situations run the risk of overreaching with an unreasonable and unjustified intrusion into an employer’s private use of social media. An appropriate social media policy is the foundation for establishing good social media practice and managing the attendant risks.

When it comes to applying a social media policy, employers should take the same approach as with any other workplace policy. While, as a general proposition, an individual breach of a workplace policy is unlikely to justify termination, a series of breaches may be sufficient where it reflects an employee’s flagrant disregard for policies and procedures. To establish this, employers should endeavour to document relevant steps, including training in workplace policies and all warnings regarding breaches of those policies.

Outrage, upset, indignation or scandals do not obviate the need for professional fairness.
 

We acknowledge the contribution of Jacqui Ellis.

This article was first published in Inhouse Counsel, Vol 19 Nos 6-7, August 2015.