Practical jokes, skylarking at work and workplace gossip have always been around, but with the advent of social media, such behaviour is increasingly being played out in a very public arena, potentially damaging both individual and corporate reputations.
The informal nature of communication by email, text message and online media has led to the breakdown of some of the barriers which previously existed in our interpersonal relationships.
Increased connectivity to the workplace and the blurring of the lines between home and work means that this breakdown has extended into our workplace communication and the way that we interact with our colleagues.
There are some startling statistics available which shed some light on just how pervasive social media can be.
Facebook has more than 10 million Australian users – more than 49% of the Australian population. Of these, 59% are aged between 25 and 65.
That adds up to a lot of employees engaging in a single form of social media and many more may be using other forms such as LinkedIn, MySpace, YouTube, Twitter and blogs.
While there are many benefits to business as a result of our increasing connectivity, there are also some significant risks to employers.
Social media postings and the employment relationship
The most significant cases involving the use or abuse of social media have been in the context of dismissals which have come about due to employee comments posted on Facebook and MySpace.
In one case, a hairdresser’s employment was terminated when the owner of the salon became aware of a comment that she posted on her Facebook page.
The comment: “Xmas bonus along side a job warning. Followed by no holiday pay!!! Whooooo! The hairdressing Industry Rocks man!!! AWESOME!!!” was made public, however, it was only accessible to the hairdresser’s Facebook ‘friends’ and not the world at large.
She was sacked without notice and took her case to Fair Work Australia. The Commissioner held that while some of the hairdresser’s ‘friends’ were clients of the salon, there was no evidence that they had read the posting.
Further, he held it could not be determined how many people ultimately accessed the Facebook page or what they thought of what they read. As a result of these findings, he awarded her compensation for unfair dismissal.
The Commissioner succinctly identified the dilemmas associated with social media stating that:
‘Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people....’
This case shows that while a potentially inappropriate comment on social media may constitute the kind of conduct that could provide a valid reason for dismissal, employers must still follow best practice in terms of any process leading up to a decision.
This means, performing a proper investigation and ensuring that all parties are afforded procedural fairness. Procedural fairness involves notifying the employee of the allegations against them and giving them a genuine opportunity to respond.
In terms of the penalty that may be applied to an employee’s conduct, it is also important for employers to seriously consider the nature of the comments and whether they in fact had the potential to cause harm to business or reputation.
Cyberbullying and workplace harassment
The use or misuse of social media is not only about the relationship between employer and employee. There have been several cases involving workplace bullying and harassment between co-workers, which should also sound warning bells for employers.
Employers need to appreciate that just because the conduct occurs ‘out there’ in cyberspace it does not mean that it cannot be monitored or that action for inappropriate behaviour cannot be taken.
The consequences of getting this wrong are pretty dire for the employer because of the well-established principle that employers can be vicariously liable for the conduct of their employees, as long as that conduct was engaged in at work or in connection with their duties.
For example, an employer may be liable for their employee’s breach of anti-discrimination legislation. Defences are limited. An employer must show that they have taken all reasonable precautions to prevent the offending behaviour.
Examples of online behaviour that may result in allegations of workplace bullying and harassment includes storing or distributing pornographic material (whether meant to offend or not) and the use of text messages or Facebook pages to distribute offensive, rude, explicit or threatening material.
Whether an employee can make an allegation of harassment often comes down to a consideration of a whole range of behaviours or alleged misconduct that could potentially point to a finding that workplace harassment is taking place.
If the conduct occurs in cyberspace it does not mean that it will be separate to the employment relationship, particularly where the intention might be to harass a fellow employee.
Increasingly, allegations that involve social media form just one part of the facts that are looked at when determining whether a person is being harassed in the workplace. For instance, the majority of the conduct may have occurred in the physical workplace, but examples of harassing behaviour that occurred online can also be thrown into the mix in terms of considering the employee’s behaviour.
If employers do not have policies for appropriate behaviour in place that extend to the use of social media then it will be difficult to argue that you have taken all reasonable precautions to prevent the offending behaviour.
Workplaces that allow, support or encourage the use of social media should ensure strict guidelines and policies are in place and communicated clearly and regularly to all employees. It is best to seek legal advice early if you have any concerns.
About the authors
Tim Longwill is a partner and Peta Shanahan a workplace relations lawyer at McCullough Robertson