I recently read the case of Glen Stutsel v Linfox Australia Pty Ltd  FWA 8444 which got me thinking of all the points my clients have to consider before they dismiss an employee for an “online offense”.
Glen Stutsel was dismissed on the grounds of serious misconduct when he made comments about his employers on his Facebook account. The Facebook account was private- meaning that only his Facebook friends could see the comments made. Nevertheless, his employer considered that his comments, which critized management, warranted immediate dismissal.
Fair Work Australia disagreed with the employer by ruling that the dismissal was unjustifiable. Though the comments made by Stunsel may have been “foolish” – as noted by the Tribunal, they were clearly not meant for the public to read because Stutsel had imposed maximum privacy restrictions on his Facebook account.
The Tribunal therefore accepted that Stunsel was under the impression that his comments were being made in a private forum where only a select group of friends had the privilege of viewing the comments. The outcome of the case was that Stunsel was ordered to be reinstated.
So why did Stutsel’s employers go wrong at Fair Work Australia? Simply, they had failed to implement a social media policy. Fair Work particularly commented in handing down its’ decision that in “the current electronic age”, it is simply insufficient to not have a social media policy in place.
I frequently advise clients on how to ensure that their social media policy is strong enough to protect them in instances of breach. Here are a few basic tips:
1.Make sure you clearly define what you mean by social media. The danger is that by failing to properly articulate the definition you could unintentionally narrow the scope of your policy.
- The first thing that jumps to most peoples mind is probably Facebook or LinkedIn. However, you also need to consider that breaches of social media could similarly occur on websites such as Youtube, blogs and other domains on which users can post their thoughts.
2.Articulate what social media behavior is acceptable within the policy. This may include allowing employees to access their Facebook account during their lunch break
3.The policy should include a clause which explicitly articulates what social media behavior is unacceptable. Briefly, unacceptable social media behavior results in the following:
- It has the potential to damage the reputation of the employer’s business or associated entities;
- It could be interpreted as offensive and critical of management, colleagues, or clients/customers; and
- The behaviour breaches the fiduciary duties and contractual obligations which the employee has with respect to the employer. For example, the behavior may disclose confidential information or form a breach of the intellectual property rights of the employer.
4.Finally, clearly state what the consequences of breaching the social media policy are. Remind your employees that if a breach occurs, certain disciplinary action will be imposed and that serious breach of this policy may lead to the termination of employment. Clearly articulate the disciplinary process and make sure you follow it in case of a breach, provided that it is regularly reviewed, effective and available in writing to be considered by all staff.
Remind your employees that anything they post on social media sites is potentially erasable and may be viewed by a far wider audience than originally intended.
If you don’t have a social media policy in place in your business yet, you should have one prepared as soon as possible. If you have any questions, please don’t hesitate to contact me.