Social media presents many challenges for the world of work. One is the potential for employees’ online comments when off-duty to become a fertile source of evidence for allegations of misconduct and grounds for dismissal.
Social media blurs the boundaries between work and non-work, and the public and private lives of employees. And, as several recent court cases have shown, employees now may never be off-duty.
In the past, courts have developed boundaries for when an employer could exercise control over an employee’s private life. While employees had no general right to privacy as such, courts generally recognised the principle that an employer should not seek to control or regulate employees’ private lives except in limited circumstances. In private, employees have been able to criticise colleagues and managers, and express dissatisfaction with work and working conditions generally without sanction.
While many people consider social media forums private and potentially anonymous, the reality is online discussion leaves a permanent written record which can become public. Online, people also tend to communicate more informally, bluntly and tactlessly than they otherwise would: comparisons with gossip around the water cooler and at the pub are often made.
Sometimes, online communication is clearly inappropriate and harmful to an organisation and perhaps industry; but sometimes it’s something to which colleagues and management simply take offence. It may be a deliberate attempt to intimidate or harass a co-worker or a single, impetuous expression of frustration. Either way, online conduct may become evidence to justify disciplinary action and dismissal.
This raises critical questions for employers and employees. How careful must an off-duty employee be when talking about work in online forums? Do employers have any obligations to employees in setting guidelines about their social media use?
This issues are still so new that no clear lines of authority from courts and industrial tribunals have emerged. But several recent cases have provided some guidance.
In a 2011 decision, the Fair Work Commission said:
The fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues.
This suggested a significant blurring of the boundary between workers’ public and private lives.
Linfox puts ignorance to the test
A series of more recent cases has suggested industrial tribunals might take a different approach. These cases involved the transport and logistics company Linfox. Linfox had dismissed an employee who made racially derogatory and sexist comments on Facebook about several managers.
In the first instance, the Fair Work Commission decided the employee’s dismissal was harsh, unfair and unreasonable for a number of reasons. These included the male employee’s limited understanding about the privacy of Facebook communications, and also his long and satisfactory employment record. The single Commissioner also noted that the “nature of the milieu in which the remarks were made” is important, and that in this case, there was “much of the flavour of a conversation in a pub or cafe, although conducted in electronic format”.
On appeal, the Full Bench of the Commission upheld the original decision. But the Bench rejected the comparison between online and pub conversations, because online discussion can have a wider circulation, is easily forwarded on to others, and leaves a permanent record.
At the same time, though, the Commission said that given it was normal for people to discuss their work lives and the people in them, it was:
Mindful of the need not to impose unrealistic standards of behaviour and discourse about such matters or to ignore the realities of workplaces.
In mid December 2013, the Federal Court rejected Linfox’s appeal against this decision.
The original Commission decision appeared to rest heavily on the employees’ argument that because of his inexperience with social media, he believed his webpage was private. According to the Full Bench, such claims of ignorance “on the part of an older worker … might be viewed differently in the future”. As understanding of Facebook grows in the community, “ignorance may cease to hold much weight”.
Beyond the social media policy
This decision has also made clear, however, that a crucial consideration for tribunals will be whether the organisation has adopted and communicated a social media policy to employees.
The policy must inform staff what is appropriate, what is prohibited and what the consequences of misuse will be. It is not sufficient to have a detailed policy in place: an employer must have taken pains to acquaint employees with it.
The problem that remains however, is that individuals lack total control over private social media forums. Privacy settings constantly change, and it can be difficult controlling the behaviour of “friends” who may choose to share content. The only safe strategy for an employee even when off duty, therefore, may very well be not to engage in any discussion about work in any online forum.