In brief

  • Freehills recently held an interactive panel discussion about the evolving impact of social media in the workplace. 
  • Facilitated by former ABC Radio presenter Lisa Leong, the panel – comprising Kate Jenkins and Andrew Pollock from Freehills’ Employee Relations group, and Robin Tarr and Stan Gallo from KPMG Forensic – answered questions submitted by attendees around the ‘real-world’ challenges that social media poses for HR professionals and lawyers.
  • In this update we take a look at the key questions put to the panel, and touch on some of the issues arising from the session, which we see as pivotal in shaping organisational approaches to social media over the coming years.

The key questions

  • Can employers use Facebook for misconduct and performance issues? What are some of the potential minefields?
  • Is there a recent test case that establishes a precedent for the management of social media misuse?
  • What is the best way to ensure that client relationships are not impacted by employee use of LinkedIn?

Can employers use Facebook for misconduct and performance issues? What are some of the potential minefields?

The panel overwhelmingly supported the use of Facebook and other social media by employers when dealing with misconduct and performance issues, but noted a range of legal risks to be managed in doing so.1 Some emerging practical issues identified by the panel included:

  • Data integrity. The panel highlighted the critical importance of maintaining data integrity. The manner in which an investigation is conducted from a technical standpoint can impact upon whether or not particular data which is collected can subsequently be used as evidence. The panel noted this as a key risk in using internal providers (for example, IT or HR personnel) to conduct the technical aspects of the investigation, and observed that experienced forensic investigators may in appropriate cases provide a valuable safeguard against the inadvertent compromising of data.
  • Ongoing audits. The pace of social media growth and development presents a significant challenge in maintaining an ‘up to the minute’ social media policy. With this in mind, employers should regularly audit IT and social media use (and misuse) within the organisation. Employers should also regularly review their social media policies to ensure that they accurately reflect the current state of social media use within the organisation. An effective policy should reflect and address the specific types of social media used by employees to support any later disciplinary issues.

Is there a recent test case that establishes a precedent for the management of social media misuse?

Two recent cases provide valuable guidance to employers in managing social media misuse.

We have previously discussed2 the decision in Stutsel v Linfox Australia Pty Ltd3 and the importance it places upon a well-formulated and well-communicated policy approach. While the decision has been appealed and judgement on appeal has not yet been handed down, the panel observed that the focus on policy in Stutsel v Linfox (reflected in other FWA decisions such as Fitzgerald v Smith T/A Escape Hair Design4 and O'Keefe v William Muir's Pty Limited t/a Williams The Good Guys5) remains the touchstone for effective risk management in this area.

The ‘blanket ban’ approach to workplace social media use is becoming increasingly less realistic and manageable in light of the prevalence of mobile devices in the workplace. As such, policies will need to evolve to reflect both the pace at which these technologies develop and the characteristics of the workforce to which they apply. A considered approach to policy implementation and education is vital in ensuring that key messages and expectations ‘get through’ to younger employees who may be resistant to such a policy. To this end, employers should identify (and consider tailoring training toward):

  • those involved in determining the policy approach 
  • those involved in implementing the policy approach
  • parts of the business likely to be most affected.

The recent decision of Margelis v Alfred Health6 is another decision yielding important lessons for employers. The decision is an example of the increasingly sophisticated approach taken by courts and tribunals when considering technical evidence relating to internet use.

In Alfred Health, an IT employee was summarily dismissed for serious misconduct including:

  • attempted unauthorised access of a co-worker’s email account, and
  • participation in an online conversation with a co-worker containing lewd and offensive remarks about a female co-worker.

The employer’s case relied heavily upon the detailed evidence of a number of forensic investigators. While the decision turns on its own facts, the level of analysis in Commissioner Gay’s decision illustrates the challenge for employers in establishing sufficient evidence to support a valid reason for termination in relation to online conduct.

Employers seeking to rely on technical evidence should ensure evidence is collected to preserve its integrity and admissibility (as discussed above). However, employers ought not be afraid of using freely available evidence of misconduct in circumstances where doing so will not impact upon the integrity of the evidence. For example, it may be acceptable for an employer to use evidence of derogatory or abusive comments posted on a publicly available Facebook page in support of allegations of misconduct. 

It is also useful to compare Commissioner Gay’s approach to assessing the severity of disparaging comments about co-workers made on social media in Alfred Health to those of Commissioner Roberts in Stutsel v Linfox and Deputy President Swan in O'Keefe. While each case acknowledged that comments in social media are public in nature, violent and tasteless comments were afforded vastly different treatment in each case. In this regard, two approaches are emerging:

  • An low tolerance approach which in effect assesses the severity of the comments against the ‘yardstick’ of appropriate workplace conversation. This approach was adopted in O’Keefe and Alfred Health
  • A more relaxed approach involving a greater emphasis on context in which the comments were made. This approach was adopted in Stutsel v Linfox, where Commissioner Roberts characterised the comments as akin to a conversation in a pub or café involving a ‘group of friends letting off steam and trying to outdo one another in being outrageous’.

The particular approach taken appears to depend on both the nature of the workplace and (at least to some extent) the views of the particular tribunal member.

What is the best way to ensure that client relationships are not impacted by employee use of LinkedIn?

We have previously commented7 on the evolving role of LinkedIn as a client database, and the challenges facing companies in protecting those contacts when employees depart. The panel highlighted the protection of client databases in the form of social media contact lists as one of the likely ‘next big issues’ in the social media space.

While each organisation’s approach to protecting contact lists will depend on its own circumstances, the panel outlined some useful options both during employment and upon termination:

  • Employers should ensure that their social media policy expressly requires employees to remove the employer’s clients from contact lists immediately upon resignation or termination. Including this requirement within the social media policy supports the view that such a requirement is a lawful and reasonable direction.
  • The policy might go further in relation to new employees by requiring them to:
    • review their existing contact lists with HR (and provide a copy of that list) upon commencement of employment, and
    • meet with HR upon resignation or termination for the purposes of comparing their contact lists at that stage with those lists at the commencement date. This comparison would assist the employer in identifying those clients from which the departing employee would be required to de-connect.