The growing use of social networking services, such as Facebook, Twitter and LinkedIn, is creating a growing set of problems for employers. As the recent Fair Work Australia decision in Fitzgerald v Dianna Smith t/a Escape Hair Design demonstrates, employers need to ensure that these problems are handled correctly.
As more and more Australians join social networking services, employers face increasing problems in managing employee use of these sites. Many employers choose to block or limit access at work, while others attempt to harness the social networking phenomenon as a marketing tool.
However, questions arise about what employers can do when their employees’ use of social networking services, even when outside of working hours, impacts on the workplace.
Out of hours conduct
Employers and employees have an implied duty of trust and confidence towards one another. If conduct outside of working hours undermines that trust and confidence, it can become a legitimate basis for disciplinary action and even dismissal.
In Fitzgerald v Dianna Smith t/a Escape Hair Design, the employee, Ms Fitzgerald, posted the following message as a status update on her Facebook page:
“Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]”.
Commissioner Bissett of Fair Work Australia decided that the posting of this message was not a valid reason for dismissal. The reasons for this included that the message did not cause any detriment to the employer’s business, the message was only visible to Ms Fitzgerald’s Facebook “friends”, the message did not identify the employer and it only stayed on the site for a couple of weeks.
Importantly, when the employer found out about the message, she did not immediately act upon this information. In fact the employer did not raise the issue until she dismissed Ms Fitzgerald more than a month later, citing the Facebook message and three other issues as reasons for the dismissal. Commissioner Bissett considered that this lack of immediate action suggested that the message had not damaged the relationship of trust and confidence between employer and employee.
However, Commissioner Bissett did have some words of caution for employees who make disparaging comments about their employers on Facebook and other social networking services. She commented that “[w]hat might have previously 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.”
It was clear from her decision that she believed that there is scope for comments made on social networking sites to be a valid ground for dismissal where they damage the employer’s business or undermine the trust and confidence in the employment relationship.
More recently, in Dover-Ray v Real Insurance, Commissioner Thatcher decided that Ms Dover-Ray’s posting of disparaging comments about her employer, Real Insurance, on her MySpace blog was a valid reason for dismissal.
Ms Dover-Ray posted the comments on MySpace after Real Insurance had informed her that it had investigated her allegations of sexual harassment against a co-worker and had found the allegations to be unsubstantiated. The blog repeatedly accused Real Insurance of corruption and bias in the course of the investigation.
In finding that the blog constituted a valid reason for dismissal, Commissioner Thatcher noted that, although the blog did not identify Real Insurance by name, it would have been clear to anyone who knew Ms Dover-Ray that she was referring to her employment with Real Insurance. The blog was publicly accessible through a Google search and was readily accessible to a number of Ms Dover-Ray’s co-workers who were among her MySpace “friends”. Ms Dover- Ray left the blog on her MySpace page for several weeks, despite requests from Real Insurance to remove it.
Commissioner Thatcher commented the blog may not have been a valid reason for dismissal had Ms Dover-Ray posted the blog in the heat of the moment after hearing of the outcome of her sexual harassment complaint, but removed it within a reasonable period of time once she had had time to reflect on the consequences.
In contrast to the comments made by Commissioner Bissett in Fitzgerald, Commissioner Thatcher took the view that it was not necessary to find that the implied duty of trust and confidence had been damaged in order for there to be a valid reason for dismissal.
Of course, problems can arise not only from disparaging comments about employers, but also from comments that are made about co-workers, especially where this amounts to bullying or sexual harassment.
Another area that causes problems for employers is in relation to confidential information and post-employment restraints. Although there have not been any cases on this issue in Australia, an English case, Hays Specialist Recruitment v Ions, dealt with the problems caused when an employee left to work for a competitor but remained in contact with clients via LinkedIn.
Hays alleged that the former employee had breached his post-employment restraints regarding confidential information by using contacts that he had obtained at Hays to further his new business.
The Court ordered the former employee to hand over all of his LinkedIn contacts and all messages sent from his LinkedIn email account as part of a pre-action disclosure.
Steps for employers
The most important step for employers is to make sure that they have an appropriate social networking policy in place. This policy should, as a minimum, contain the following:
- a clear definition of “social networking”
- clear guidelines on the use of social networking services at work (if allowed) and outside of work, including what is and what is not acceptable social networking behaviour
- a warning about disclosure of confidential information on social networking websites
- an explanation of the consequences and a disciplinary process for breaches of the policy.
Obviously, there is little point in having a policy if no one knows about it, so employers must ensure that all staff are made aware of the policy and understand it.
It is also worthwhile to review other workplace policies in light of the impact of social networking. This includes policies on bullying, harassment, confidential information and intellectual property.
Finally, if an employee’s use of social networking sites does impact upon the employment relationship, it is important for employers to learn from Fitzgerald v Dianna Smith t/a Escape Hair Design and take immediate action to address the problem. In situations where an employer is considering dismissal based on an employee’s use of social networking, they should seek advice.