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msi_-_social_media_at_workBy Raymon Anderson, Makinson & d’Apice, Lawyers, Sydney

Previously we have spoken about the traps of Social Media and how having a social media policy in place is essential to protect the business as well as employees. Below we share two examples of how social media and the management of social media policies swayed Fair Work Australia (FWA) in Unfair Dismissal claims.

Case 1 – employee successfully gets job back

Facts – an employee, Mr Stutsel, made derogatory comments on Facebook about his managers including commentsabout committing violence on them. When management became aware of the comments Mr Stutsel was fired and he lodged a claim for unfair dismissal with Fair Work Australia (FWA).

FWA reinstatement – FWA considered that Mr Stutsel’s comments were akin to a general ‘whinge’ about work in a conversation at a pub or café – and that the comments were consequently so foolish their impact was considered to be relatively minor.

FWA found that the dismissal was not valid as Mr Stutsel:

  • was not familiar with Facebook security or privacy settings having not set up his page or been a proficient user;
  • did not know he could delete some of the offensive comments made by others on his page; and
  • he had an unblemished 22 year record with his employer and the conduct occurred outside of the workplace and in the absence of a relevant work policy.

Unsuccessful Appeal by employer – The employer appealed but the FWA full bench agreed with the reinstatement due to the reasons stated above and stated further considerations to have been the unfair differential treatment of several employees involved and Mr Stutsel’s genuine remorse.

FWA warning at large – FWA did state that increasing use and understanding of social media and its intricacies among employees of all ages, together with more and more companies putting in place social media usage policies would quickly erode the considerations for lenience in this case from application in future cases.

Case 2 – Employer successfully maintains termination

Summary – In this case highly inappropriate written comments were made between two IT administrators, during work time and using work computers. Dismissal ensued and an Unfair Dismissal claim was lodged with FWA. FWA said that communications to and from work computers are inherently non-private and ruled that thecompany’s existing IT policy was expected to be complied with. The Unfair Dismissal claim was, therefore, not successful.

Lessons from Case 1 and 2

The distinguishing features between the above two cases include:

  • Only one of the workplaces had a relevant policy that was able to uphold the termination of their employee due to inappropriate social media use
  • Only one of the workplaces saw the conduct occur during work time and on work equipment
  • Only one of the workplaces had an employee inexperienced in social media who at least in the current environment could rely on that ignorance.

While in the first case, the employer’s appeal may not have been successful, it nevertheless underlines the importance of maintaining a social media policy and ensuring employees are regularly made aware of it. It is recommended that employers should ensure that social media policies are updated, clear, relate to use of work time and equipment and also consider if training staff on aspects of social media use (including security/privacy settings) would also prevent the allegation of ignorance as a defence.

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