You can say what you like on social media and, unfortunately, many people do. A business’ reputation can be damaged by employees’ comments on Facebook or internet forums – however it’s not always clear what rights business owners have when it comes to employee comments on social sites.
The Fair Work Commission is hearing a growing number of cases involving employees who have been sacked for comments on their personal social media sites. The disputes tend to revolve around the employer’s right to regulate private comment and whether dismissal is too tough a penalty.
It’s an evolving area of workplace dispute where the rules can seem unclear, but employers can take steps to protect themselves and their business.
Have a Social Media Policy
Jon Lovell, a Partner with legal firm Ashurst, says the policy should set out your expectations of employees, so it’s important to be clear about what you might consider appropriate and what might be a concern
Many companies value staff posting online, seeing it as a way to promote the business and its expertise. They do provide guidelines though, such as IBM’s detailed Social Computing Guidelines, which tell employees to respect the audience and co-workers.
David Jones’ social networking policy reminds staff that the company has people authorised to speak on its behalf. Other employees should make it clear when posting that they are not speaking on behalf of David Jones.
Your policy should state who a staffer can speak to if they are in doubt about a post.
Disciplinary Action - Is There a Connection to the Workplace?
If someone has crossed the line you have to be able to show the connection between private comment and the employment relationship, says Mr Lovell.
The Fair Work Commission has found in favour of employers where people have denigrated co-workers and the business, even if social media posts don’t name the company or the employee.
Ensure the Punishment Fits the Crime
Employers need to ensure any action is proportionate to the offence and not harsh or unjust.
Earlier this year, the Commission ordered the reinstatement of a Centrelink officer who posted anonymously on internet forums, denigrating clients and criticising the Department of Human Services.
The Commission found the reasons for dismissal valid but ruled the sacking was harsh given the man’s long service record, his remorse and that the Department suffered no actual detriment.
Commenting on how the Commission deals with social media cases generally, Mr Lovell says, “It is necessary to consider whether dismissal is a proportionate response to the employee's conduct on social media.”
Ask yourself whether there is something short of dismissal that you can do that satisfies you the conduct is not at risk of occurring again. You should also consider whether the harm to your business or other employees can be managed if the person remains in the workplace.
The social media world changes rapidly and can feel like a minefield to employers, but setting standards with a written policy and training for staff will reduce the risk of damage to your business’ reputation.
