Social media and its increasing use
Companies are in an unknown and untested legal ground with the continuing development and acceptance of social media. Its increased use in the workplace for personal as well as work purposes. Whilst attempting to figure out how to handle what had previously been simply perceived as misconduct. Moreover, what is considered the blurring of work time and the increasingly 24 hour global economy. How far the company may intrude into employees’ zones of privacy is morphing into something that is as of yet not fully defined. Misconduct & Social media is more relevant than ever before.
This constantly changing of living, conducting ourselves and business brings with it an entirely new set of challenges to the disciplinary arena. For example, prior to the rise of social media, if an employee working made a statement about his or her salary publicly and the employer had instructed him or her not to do so, such an action may have resulted in dismissal. However, if the same event occurs through social media the result may be different.
If I post something on Facebook, can I be dismissed for it?
Social Media & Misconduct, what’s the new workplace landscape? The Fair work Commission in QLD heard the unfair dismissal case of Thompson v 360 Finance P/L  FWC 2570. Where it was decided that serious misconduct spans to the cyber world when it concerns colleagues or the Company itself.
Posted memes on his personal Facebook Page
In this case, the Applicant claimed he was unfairly dismissed after he posted memes on his personal Facebook Page. The Fair work in Queensland found that as one of the memes contained sexual connotations to a colleague. This involved the workplace. The Applicant argued that as he did not have the Company listed as his employer on his Facebook. The public would not know who it was about. The Applicant had also received previous formal warnings for sexual and derogatory comments in the past.
Fair work Commission has a consistent approach to deciding matters with regards to digital communication, in turn social media and serious misconduct. Serious misconduct is defined as conduct that is willful or deliberate. That it is inconsistent with the continuation of the employment contract as per regulation 1.07(2)(a) of the Fair Work Regulations.
Serious misconduct and Facebook
A case previously decided by the Commission in regards to posting on Facebook involved an employee making negative and threatening comments about a colleague on Facebook. The Commission found that threatening another employee is a serious issue and constitute serious misconduct. Therefore, the Commission has made it clear that when alluding to workplace matters in the digital realm, an employee is held to the same code of conduct as if it were in person.
The Applicant’s primary argument was that this conduct was not in fact a breach of the company’s code of conduct. As “all sorts of conduct’ was permitted in the workplace. Including racially provocative emails, racist secret Santa gifts and aggressive or abusive conversations with clients and suppliers.
The Fair work did acknowledge that the Company’s standard of conduct fell short of the conventions expected in workplaces. However, they stated that the Applicant’s conduct was “nonetheless plainly inappropriate, if not also unlawful”.
What about posting out of hours?
Social Media & Misconduct
As decided by Fair Work, the employer only has the right to extend supervision over the private activities of employees in exceptional circumstances. In Rose v Telstra, three circumstances were reaffirmed by Fair Work. These are:
- That the conduct by the employee, objectively must be likely to result in serious damage to the relationship between the employee and employer; or
- That the conduct damages the interests of the employer; or
- That the conduct is incompatible with the employee’s duty as an employee.
Therefore, as social media is evidentiary in nature, meaning there is proof of what one posts, it is likely that supervision can be extended to out of hours conduct in regards to social media.
Differential treatment in dismissal case
The Fair work Commission may take into account differential treatment of the Applicant compared to other employees.  In Fagan v Department of Human Services, the Commission found that the conduct of 2 employees was comparable and that there was in fact differential treatment. Therefore, the dismissal was harsh in the circumstances. The Applicant would have to prove that another employee made similar comments or comments that offended another employee, and was not terminated for doing so.
However, as the Applicant had received formal warnings for derogatory and sexist comments in the past, this would mitigate the argument of differential treatment.
Considerations in dismissal case
Fair Work Queensland also considers work performance or history, and procedural fairness. The impact of the dismissal on the employee’s personal or economic situation. These matters may help the Commission determine whether termination was harsh, unjust or unreasonable in the circumstances.
The Applicant was summarily dismissed as a result of the serious misconduct. A summary dismissal is the harshest form of termination of employment. When a person is summarily dismissed they are not given notice or payment in lieu of notice period. They may also have their entitlements removed. Therefore, Fair Work in Queensland may consider the harshness of this type of termination in proportion to the misconduct. Be aware there is risks of losing your long servce leave.
Social Media & Misconduct
After more than a year of working from home and relying on social media more than ever as a form of communication, we should be aware of its permanency and its implications in the professional sphere of our life. Cyberspace is an extension of our actual life and therefore, as Fair Work has stated, an employer’s code of conduct is applicable to social media in the same way as it would be in person. If allegations of serious misconduct have been issued against you, get advice
We are A Whole New Approach P/L, we are not lawyers, but leading workplace advisors, have a question, concerns, just want to chat, give us a call, advice is free, prompt, confidential.
We receive 100’s of calls every month on this subject, so we think we are in the position to give you a list of the reasons employees end up suspended / dismissed.
- Conspiracy theories regarding vaccinations and the workplace
- Nazi and Hitler type comments about their manager or supervisor
- Sexualized type comments about female co workers.
- Inappropriate pictures regarding co workers and managers.
- Deliberately giving the company or its services and products a one star google rating.
- Discussing of salaries and conditions of employment in open forums
- Comments about husbands or wives or partners of co workers or management.
- Divulging confidential information on line about workplace investigations
- Discussing other staff mental or physical illness.
- Telling everybody they hate their job, why this is, the companies BS and they are leaving.
The FWC has confirmed that stopping work to post on social media about bargaining can be protected industrial action, even if it might breach workplace policy.The Laminex Group T/A Laminex Group Pty Ltd objected to the terms of a PABO sought by the CEPU’s, claiming the union’s proposed action of stopping work to post on social media or speak to the media about bargaining or industrial action, “does not relate to limitations or performance of work in a different manner”. Laminex said that the proposed actions might not constitute industrial action under the Fair Work Act’s s19 definition.
It also considered it “inappropriate” for workers to vote on an action that would breach the company’s social media policy and argued that the employees might struggle to understand the “unclear” nature of the action. Deputy President Judith Wright found the proposed work stoppages to post on social media or talk to the media , or to “undertake a specific activity,” constituted industrial action within the meaning of s19.
“Given that Laminex has a social media policy which covers personal use of social media by employees, posting on social media about the bargaining and/or industrial action may amount to the performance of work by an employee in a manner different from that in which it is customarily performed,” the deputy president said. However, she found no need to make a finding on this, because the proposed stoppages “are sufficient for me to conclude that the actions in these questions constitute industrial action”. She also found “nothing unclear or ambiguous” in the CEPU’s questions, which, she emphasised, must describe the proposed action “in a manner that employees are able to respond to,” but are not required to specify the precise form of industrial action.
Conclusion to Misconduct & Social media
I hope this article has been of some benefit or interest to you. The whole social media platform is maturing. I hope the above cases have been of some assistance to you. Careful how you use social media in the context of company policies. The social media giants are slowly bowing to pressure to clean up there act in regards to some subjects and commentary. This then raises the question who decides our democratic values?. Who gets to play censor?. That’s a whole different question. All I can say is stay safe, keep your reputation in tact. Of course have your say, just don’t get dismissed or sacked over putting something “on line” your possibly going to regret.
We are A Whole New Approach, ( we are not lawyers) anything to do with workers rights, workplace investigations, of course social media, or toxic workplaces, give us a call. We work on a national basis.
Call 1800 333 666, its free, confidential and prompt.