Employee fired for Facebook comments: Spotlight on social media policy Part I

by Stephanie Zillman24 May 2012

The outcome of a recent Fair Work Australia (FWA) decision has highlighted the importance of maintaining and consistently reviewing internal social media policies.

FWA made the decision in Glen Stutsel v Linfox Australia Pty Ltd [December 2011] to reinstate the employment of an employee who had been dismissed for making comments about his managers on his Facebook profile.

Glen Stutsel had been employed as a truck driver by logistics company Linfox, and was fired in May 2011 after management became aware of comments he had made online which criticised his managers.

However, FWA found that Stutsel had made the comments in a forum which he held to be private – he had set up his Facebook profile with the maximum security settings.

FWA found that, for this reason, the employee believed he could privately and candidly interact with his friends.

While the ombudsman agreed the employee’s comments were “foolish”, it was found that the comments were not intended for public display, and therefore there were no valid grounds for termination. As a result, his employment was ordered to be reinstated.

According to Harriet Stacey, co-founder and principal of Wise Workplace Investigations, many employers don't realise that social media policies are not a ‘set and forget’ policy, and must comprehensively spell out what is acceptable online conduct. Simply banning social media usage in the workplace is insufficient, as comments made outside of work can be just as detrimental and damaging to an organisation’s reputation.

While many workplace policies are seldom referred to – common sense and practical problem solving are sufficient to resolve most issues – social media is one policy area that regularly comes into play when things get complicated.

“In times of rapid change, as we are seeing with the development of social media, it is critical to stay ahead of the game. You must determine what is OK and what is not OK for your organisation - and put it in writing,” Stacey said.

In the recent case of Damien O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311 (August 11, 2011) an unfair dismissal application was dismissed in part because of the strong policies held by the Good Guys company.

The employee had been sacked for serious misconduct after posting derogatory comments about the employer on his Facebook profile.

Despite the employee making the comments on a personal computer outside of work hours, the court found in favour of the Good Guys, largely because the company had a clear and comprehensive employee handbook covering the way staff should communicate with each other as well as spelling out firm bullying and harassment policies.

Stay tuned for Part II out Monday - in this newsletter that will bring you the latest guidelines for structuring your social media policy. Click here to subscribe.


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