It is likely that many, if not all, of your employees, use social media. Many of their profiles will have references to their job somewhere on their page or throughout their account history. Often, employees positively use social media. For example, they may use Facebook to advertise jobs at your company, share an Instagram story of the food platter they made to raise money for charity at work or even send a Snapchat of their work attire for the day. However, some employees may create and share content that is not positive and may be to your company’s detriment. What happens if your employee has made a comment on social media that paints your business in a negative light or does not align with your company’s values? This article explores how employers can deal with such behaviour.

The Linfox Case

In the 2012 case of Linfox Australia Pty Ltd v Glen Stutsel, Fair Work Australia (FWA) agreed with the first FWA decision in 2011 that the termination of Mr Stutsel was an unfair dismissal. Mr Stutsel argued that he was unfairly dismissed because his position was terminated after he made an inappropriate comment on social media about his colleagues.

FWA decided that Linfox’s dismissal of Mr Stutsel was unfair because:

  • the employee did not understand that his Facebook had limited privacy settings turned on;
  • the employee had worked at Linfox for a long time and had otherwise not shown any other negative behaviour;
  • other employees commented on Mr Stutsel’s post yet were not treated in the same way as Mr Stutsel; and
  • Linfox did not have a social media policy in place.

Therefore, if an employee makes a negative social media comment or post about your company, you cannot automatically terminate them. Instead, you must undertake a thorough and procedurally fair disciplinary process before making a decision to fire the employee.

Social Media Policy

A social media policy is imperative to clarify your organisation’s expectations for your employees. FWA’s stance in the Linfox case should act as a reminder for all employers to prioritise such a policy.

The FWA criticised Linfox’s lack of a social media policy:

“In the current electronic age, [a lack of a social media policy] is not sufficient and many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies.”

There are three points we can take from this quote:

  1. it is essential for your business to have a social media policy;
  2. the policy must detail what your company expects of employees regarding their social media use; and
  3. the policy must also cover the consequences of:
    • breaching the policy; and
    • not meeting your expectations regarding social media use.

A well-drafted social media policy should address the following questions:

  • When does work stop and personal life start? The policy should include terms ensuring your employees cannot post something negative the minute they clock off work, even if they think that no one from work can see the comments.
  • What sort of conduct is and is not acceptable? Use examples in your social media policy.
  • What disciplinary measures are in place when an employee breaches this policy?

You must “acquaint” your employees with your policies. Policies should be:

  • referred to;
  • relied upon; and
  • easily accessible by employees.

You should also ideally conduct training to educate employees about acceptable behaviour.

Firing an Employee

Can you fire an employee because of a comment on social media? The answer is not necessarily. You may have a strong social media policy in place that clearly sets out your expectations of employee social media conduct. However, an employee may still breach the policy.

If there are legitimate grounds, you can commence a disciplinary process which may lead to terminating an employee for a valid reason.

Key Takeaways

Having a social media policy in place to acquaint your employees with your expectations is imperative. It is the first step to minimising the risk of employees painting your business unfavourably on social media. Instead of immediately firing an employee after a negative comment on social media, you should follow the steps in your social media policy.

If you have any questions or need advice drafting a social media policy or dealing with an employee’s unfair dismissal claim, get in touch with LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

Jessica Anderson
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