The Fair Work Commission warns of the expectation that employers will have a Social Media Policy if they wish to discipline employees for abusing managers or fellow employees. We would extend that warning for schools who wish to set standards of behaviour for its school community – its students, employees and parents.
The Commission has reinstated an employee who was sacked for serious misconduct after posting comments about two of his managers on his Facebook page. The employee otherwise had an extremely good employment record over 22 years of service.
The comments could be viewed by the general public and were offensive, derogatory and discriminatory, and included suggestions of dishonest and underhanded conduct and comments of sexual misconduct. The employee’s Facebook account had some 170 other persons with the status of “friends”, many of whom where also employees of the same company.
The employee’s Facebook page was set up by his wife and daughter. He believed that it had the highest privacy settings. He also believed that comments posted on his Facebook page could only be viewed by his Facebook friends and he was not aware that he could delete comments that others posted on his page.
The Commission made a number of findings:
- Some distasteful comments posted by the employee were an expression of his private views in a forum that was not intended to be public and was not a personal attack on one of his managers.
- A series of conversations had the flavour of “a group of friends letting off steam and trying to outdo one another in being outrageous” and of “a conversation in a pub or café, although conducted in an electronic format”.
- Some of the conversations related to the employee’s activities as a union delegate and it was therefore unsurprising that some of the comments were uncomplimentary.
- Outrageous comments of a sexual nature about a female manager were mostly not made by the employee but he was unaware that he could delete them from his Facebook page.
The Commission noted that the employee, an older worker, was a novice when it came to his Facebook page. It also took into account the fact that the employer did not have a Social Media Policy:
The Company did not have a policy on the use of social media by employees. In an era in which may companies have detailed social media policies, the parts of the induction training material and handbook upon which the Company relied were not adequate to ground the action taken against the Applicant.
While the decision to reinstate was upheld by the Full Bench, the Full Bench nevertheless gave a warning to employees that ignorance as to the nature of Facebook is likely to provide little joy to them in the future:
It is also apparent that, with increased use and understanding about Facebook in the community and adoption by more employers of social networking policies, some of these factors [ignorance and lack of understanding] may be given less weight in future cases. The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future.
Social media policy
Employers must have a detailed Social Media Policy if they are to discipline or terminate employees for misuse of social media forums. Employees who misuse social media cannot assume that ignorance or misunderstanding as to its impact and audience will be viewed sympathetically and, as the Full Bench noted:
Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees.
We remind schools to ensure that they have Social Media policies that apply to the conduct of all staff, students and parents.
References: Stutsel v Linfox Australia Pty Ltd  FWA 8444; Linfox Australia Pty Ltd v Stutsel  FWAFB 7079. Linfox has appealed the decision to reinstate the worker to the Federal Court.