People + Culture Strategies director and workplace law specialist Kathryn Dent said after hours conduct on social media was a standard part of social media policy for sophisticated businesses, but was being increasingly enforced.
Dent said that, to some extent, there had been a reluctance from business to pursue concerns with employees’ after hours social media activity. However, court decisions are changing that, giving new confidence to business.
“You can understand why employers would be reluctant to venture into after hours areas, but with the courts having started to sanction that, employers now have more liberty to actively protect their businesses and their workforce.”
Dent said questionable social media activity after hours can impact relationships in the workplace, or damage businesses themselves directly.
This year’s new anti-bullying jurisdiction has only heightened the awareness of the workplace behavioral implications of social media activity, Dent said.
“The prevalence of workplace bullying can be facilitated by social media, and so I think we might see more bullying claims that are brought with regard to things said in the online world, as opposed to the actual physical workplace.”
A Fair Work Commission decision in Malcolm Pearson v Linfox Australia
earlier this year found that an employee’s repeated breaches of a social media policy was not unreasonable grounds for dismissal, with the employee’s freedom of speech concerns raised in the case found not to be relevant to the dismissal.
“Courts are starting to catch up with technology, recognising that social media can be damaging and employers have a right to protect themselves,” Dent said.
“Employees need to be aware that any conduct impacting on employee relations
even if after hours can be used in a disciplinary context against an employee.
“The boundaries getting broader; just because you are not physically at work, you are not exempt from complying with a social media policy,” Dent said.
Dent said organisations needed to focus on drafting and implementing social media policies if they did not already have one. Smaller and medium businesses that are less tech-savvy are most at risk of not having a policy, she said.
“There is a necessity for any organisation with employees to have a social media policy, because even if an employee is not using social media for work-related purposes, they may still be commenting in social media circles about their workplace which can have an impact on the business.
“Social media is not going away. I think there may have been a slow uptake with social media policies, due to employers seeing a separation between after hours conduct and the employment relationship. However there is a recognition that these are now one of the more critical policies for an organisation to have.”
The after-hours conduct of employees on social media will increasingly be in the spotlight in 2015, as courts end employers increasingly recognise the impact this activity can have on workplace relationships and businesses themselves.