The increasing number of complaints brought before Fair Work Australia (FWA) has put increased pressure on employers to get their social media policies in order – and to continually update the procedures to stay aligned with current case law.
Last week the outcomes of two recent cases (Employee fired for Facebook comments: Social Media Policy Part I) demonstrated that adequate social media policies can mean the difference between a favourable outcome for employers and a highly unfavourable one: reinstating the dismissed employee and/or paying compensation.
According to workplace law specialists at People + Culture Strategies, keeping an eye on current case law is integral to the decision-making process behind determining what’s acceptable and unacceptable employee social media conduct.
In Sally-Anne Fitzgerald V Dianna Smith t/A Escape Hair Design , a hairdresser was paid compensation after being dismissed over comments she made on Facebook. Commissioner Michelle Bissett found that while there had not been valid reasons for a termination, “A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences … it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.”
It follows, then, that employers should seek to regulate employee’s social media activity. Joydeep Hor, managing principal People + Culture Strategies, provided guidelines for employers as to what a good social media policy would ideally include.
“It should be well integrated with other policies in place within the organisation and be up-to-date, clear and concise. Its content will be specific to the needs of each organisation but some common areas include:
The ways in which social media should be used during work hours and how staff usage will be monitored (if at all);
Guidelines about communicating with colleagues or managers online – for instance, by sending friend requests to other staff (this is especially important in relation to managers communicating with subordinate employees)
A reminder that all of an employee’s usual obligations as employees continue to apply while using social media (this includes the application of sexual harassment, bullying and discrimination policies)
Guidelines around the use of confidential information, and any disparaging or defamatory comments made directly or indirectly in relation to the organisation, its management, or clients; and
A reminder that comments made regardless of whether they are made on a company’s Twitter account for instance or on an employee’s own private account in their own time may be subject to disciplinary action, including termination, even when those comments may appear to be unrelated to an employee’s work.