#socialmediapolicies

Having a Social Media Policy for the workplace is an essential safeguard for all employers in the social media age. It is no longer a luxury, it is a necessity.

But did you know that simply implementing a Social Media Policy won’t necessarily protect employers in post-termination disputes?

#unfairdismissal

Misuse of social media in the workplace may be a valid reason for terminating an employee, especially where a Social Media Policy is in place.^[1]

But the dismissal can still be considered ‘unfair’ if the employer fails to afford the employee procedural fairness when investigating allegations of:

social media misuse; or
breach of policy.

What does this mean? Among other things, it means an employer must provide an employee opportunity to respond to allegations, preferably in writing.^[2]

You might think that calling your boss a ‘pig’ on Facebook would be automatic grounds for dismissal. In a recent case,^[3] an employee who did exactly that was terminated – obviously. But the employee’s termination was only found to have been valid because:

2 written warnings and a final warning were given to him;
the employee was notified that the reason for his termination was derogatory behaviour; and
the employee was provided with opportunity to respond during a meeting with his employer.

This case highlights the importance of affording employees procedural fairness, even where a senior executive is arguably defamed on social media.

#policyprotection

Ignorance is bliss – sometimes. Employees’ attention must be specifically brought to the Social Media Policy, as a lack of evidence that an employee was informed may be factually equivalent to not having one at all.

In the LED Technologies’ case, where a salesman posted a crude, offensive Facebook update while on the road for work,^[4] the Fair Work Commission found there was no valid reason for dismissal because:

there was no evidence he had been made aware of the company’s social media work ban; and
the employee had ‘little opportunity’ to explain the offensive post or respond to the employer when terminated.

#tipsforemployers

To mitigate the risk of unfair dismissal claims, employers should:

set-up a comprehensive social media policy;
inform and educate employees about the policy; and
afford the employee procedural fairness throughout any investigative and disciplinary process.

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^[1]Mr Damian O’Keefe v Williams Muir’s Pty Limited [2011] FWA 5311; Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097.
^[2]Mr Michael Fitzpatrick v Bunnings Group Ltd t/a Bunnings [2014] FWC 1869, [79] and [91].
^[3]Stephen Campbell v Qube Ports Pty Ltd t/a Qube Ports & Bulk [2017] FWC 1211.
^[4]Colby Somogyi v LED Technologies Pty Ltd [2017] FWC 1966.

^{Courts ‘like’ serving documents via social media}
^{Social media policies in the spotlight.}
^{Controversial Facebook case still in the balance.}