The use of social media in Australia continues to grow on a daily basis. There are now over 13.4 million daily users of Facebook, 3.9 million active users of LinkedIn and over 2.7 million monthly users of Twitter (Source: Social Media Statistics Australia). There is a good chance that one, if not all of your employees under 30, are using social media on a daily basis.
So how does an employer regulate the use of social media by employees?
A social media policy is important in providing employees with guidance as to how they are to use social media at work (if at all) and away from work and providing protection to employers from those who use it in a way that may cause damage to their reputation and brand.
The policy should provide that employees are not permitted to post information that is confidential, that may damage the employer’s reputation or commercial interests or that represents the employee as being authorised to speak on behalf of the employer. Employees should also be prohibited from posting material that is defamatory or that constitutes discrimination, harassment or the bullying of other employees.
As with any workplace policy, the introduction of a social media policy should be supported by training, so that employees understand their rights and obligations and the potential disciplinary consequences if they do not comply with the policy.
A written contract of employment can also include provisions addressing an employee’s responsibility to use social media to enhance the employer’s business and reputation and the employee’s obligations in relation to confidential information and intellectual property.
Finally, a number of obligations are implied by law into an employee’s contract of employment including the duty of trust and confidence, acting in the best interests of the employer and maintaining the confidentiality of the employer’s confidential information. These obligations are all relevant to the way in which an employee uses social media at work.
Action against employees for their inappropriate use of social media
In an early decision considering whether the termination of an employee’s employment for messages posted on Facebook was unfair, the Fair Work Commission said that “it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity to the consequences” (Dianna Smith T/A Escape hair Design v Sally-Anne Fitzgerald  FWA 1422).
Subsequent decisions in the unfair dismissal jurisdiction reinforce the importance of having a social media policy and only taking disciplinary action against an employee for their inappropriate use of social media where there is a connection to the employment relationship. For example, private messages on Facebook (that were akin to email messages), written in the employee’s own time and using their own equipment were found not to have the necessary connection to employment in a case where the employee had criticised her manager in messages to her friend, the manager’s estranged wife.
Other employee claims involving social media
A Full Bench of the Fair Work Commission is currently considering the meaning of “while the worker is at work” under the anti-bullying provisions of the Fair Work Act 2009 (Cth). In this case, it is alleged that workers were bullied by threatening posts on Facebook. The question of whether or not this conduct occurred at work, and therefore attracts the anti-bullying jurisdiction of the Fair Work Act (in addition to other rights the workers have available to them to allege workplace bullying) is yet to be finally decided.
Freedom of speech?
In a number of recent decisions, employees have argued that their employer’s social media policy (and disciplinary action taken against them for breach of the policy) infringed their “freedom of speech”.
In considering these claims, it has been found that the “unbridled right” to freedom of speech does not exist and that, even if it did, it would not provide a licence to an employee to breach the express provisions of their contract of employment.
Decisions to date have accepted that a social media policy is a legitimate exercise in acting to protect the reputation and security of a business and that it also serves a useful purpose by making it clear to employees what is expected of them.
This post was also contributed by Rebecca Louey (Graduate).