The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Are Social Media and the Workplace too close for comfort?

Are Social Media and the Workplace too close for comfort?

Events with a SBS presenter Scott McIntyre and his tweets over the past weekend are a timely reminder of the interaction between social media and our working lives.

With more forums and platforms for people to express their views and opinions we are increasingly bombarded with information about individuals and organisations. The growing access to social media at home and in the workplace has blurred the line between our personal and professional lives.

What can employers do when an employee posts inappropriate material online which may damage the reputation of the employer or damage the relationship between the employer and employee?

Employees are entitled to keep their personal and professional lives separate, however in today's online society there are many times where what seems to be posted in private is actually in the public domain.

If your organisation has a social media/online policy as part of your businesses policies and procedures with clear limitations for what constitutes unacceptable social media behaviour you are in a good position to take disciplinary action against an employee who breaches this policy.

If, however, your policies have not quite kept up with the times you are still entitled to enforce implied employment contract terms, which include protection from behaviour which damages your business reputation or behaviour which makes your employment relationship untenable, although this is much harder to do when a breach is not obvious or straightforward.

In a 2012 case regarding the employment of a worker with Linfox determined that if a persons out of work conduct is relevantly connected to their employment an employee can be dismissed for such conduct. Any conduct therefore likely to cause serious damage to an employee/employer relationship or cause harm to the employer's brand is very likely to justify disciplinary action and in some cases termination.

While each case is obviously determined on its own facts, in a situation where any employee makes disparaging comments about an employer personally or an employer's business, it may be grounds for termination.

In the Linfox case the employee was dismissed for posting disparaging comments about his supervisors on Facebook. The employee claimed he had been unfairly dismissed, believing his Facebook page was private and could not be seen by any other person than those on his friends list. He claimed that as it was never his intention to communicate offensive comments to the staff members concerned he should not have been dismissed. Fair Work agreed and reinstated his employment. In this case Fair Work was particularly critical of the employer's failure to have a clear, written policy on the use of social media by employees. If a policy existed, Fair Work suggested that the outcome of the case may have been different.

Where employees have openly threatened colleagues or employers on Facebook, have made quite obvious derogatory comments about an employer’s business or posted about “faking a sickie”, Fair Work have found that these behaviours can constitute serious misconduct and have found employers were justified in dismissing employees.

Ultimately, it will always depend on the facts surrounding the dismissal but if you have a clear unambiguous social media policy and properly train staff concerning acceptable social networking behaviour it is more likely that any disciplinary action taken by an employer as a result would be justified.