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Social Media - Making it workBy Genevieve Lakey, Aitken Partners, Melbourne, Lawyers

An employee’s use of social media, particularly comments made in the public domain, can have significant impact on their employer. It is not the employer’s obligation to monitor its employees’ use of social media in a personal capacity. However, when a post is brought to an employer’s attention that may have an adverse impact on itself, its employees or its clients then the employer may have certain rights and obligations that behove it to act.

Social Media Posts

Posts that identify the employer, other employees and clients depending on the nature of the post may bring the organisation into disrepute, constitute bullying or harassment of colleagues or breach the organisation’s privacy obligations to its clients. In circumstances where an organisation has legal obligations to its employees and clients, an employer is able to regulate an employee’s use of social media in a personal capacity when it is work related.

Discipline or Dismissal

Posts on social media relating to work may warrant discipline or in some cases, but not all, dismissal if they harm the employer. However, the response by the employer needs to be appropriate to the severity of the conduct. It is also important to follow the appropriate process as set out in the employer’s policies when investigating such conduct (for example see Mr Nirmal Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186).

Some additional aspects to consider when disciplining an employee for conduct on social media include:

  • Evidence that the employee made the post;
  • Ease with which the employer could be discerned from post;
  • Who had access to the post;
  • Impact of the post on the employer;
  • Length of time the post was ‘left up’; and
  • The employer’s policies in relation to the conduct (ie social media, bullying & harassment, privacy)

A detailed and clear social media policy and a comprehensive induction in relation to social media and the impact on the workplace is important to manage the risk of inappropriate conduct on social media. In circumstances where the organisation has its own social media accounts or persona, the social media policy should clearly regulate the conduct in relation to such an account.

The conduct of employees, in the social media sphere, reflects on the employer and the damage done can be severe. With this is mind employers need to ensure that they follow the appropriate processes when investigating social media conduct so that if discipline or dismissal that results from the investigation is questioned, the employer is in a strong position to assert and justify its position and actions.

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