Reading time: 4 minutes

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.

Webinars

Employment Essentials for Tech Businesses

Thursday 5 May | 11:00 - 11:45am

Online
Protect your tech business and your employees by understanding your employment legal obligations. Register for our free webinar today.
Register Now

How to Protect and Enforce Your Trade Mark

Wednesday 11 May | 11:00 - 11:45am

Online
Protect your business’ brand from copycats and competitors. Register for this free webinar to learn how.
Register Now

Corporate Governance 101: Responsibilities for New Directors

Friday 13 May | 11:00 - 11:45am

Online
If you are a new company director, join our free webinar to understand your legal compliance obligations. Register today.
Register Now

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Online
Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

Online
If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

Online
If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Online
Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Online
Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer