New workplace legislation has made online social networking communication between work colleagues more dangerous for employers. These days, more employees have easy access to email and the internet. It has become a social trend to participate in social networking websites such as Twitter, Facebook, MySpace, Bebo and YouTube.
An ‘adverse action’ clause in the Fair Work Act 2009, means that employer/employee social interaction on these websites could have wider implications.
What may be meant as an innocent comment via social media by an employer to an employee, may lead to bosses facing lawsuits for unlimited damages for harassment, bullying or discrimination. Allens Arthur Robinson Partner and head of the firm’s Workplace Relations Group Adam Lunn said;
‘Employers need to think very carefully before they allow employees to become ‘friends’ on their social networking site. Allowing employees to openly access your Facebook or MySpace account, opens you to defamatory material being placed on there, or just the perception your engagement with some employees is more favourable to them than to other employees. You could be seen to be discriminating against an employee that you don’t befriend. It is important to remember that the employer-employee relationship doesn’t stop at the office door.’
Under the Fair Work Act’s ‘adverse action’ clause, workers can sue for unlimited damages over actions that adversely affect their job, injures or discriminates, or threatens such actions.
• ‘Nurse Ratched’ – An employee in Canada started a personal blog about running. The blog was available to anyone with access to the internet. The employee used her real name and alluded to her employer. She commented about her managers and colleagues in unflattering terms, referring to her supervisor as ‘Nurse Ratched’ and her workplace as a lunatic asylum. The court concluded that her dismissal was justified on several grounds, including the fact that her colleagues no longer wanted to work with her.
• ‘Diary of a Flight Attendant’ – A Delta flight attendant was dismissed after she started a blog entitled, ‘Diary of a Flight Attendant’, in which she posted what were considered to be ‘inappropriate’ photos of herself in her Delta uniform. These photos showed her relaxing on a jet on the ground in between flights. One photo depicted her leaning over her seat with a patch of her brassiere showing. The flight attendant claimed sex discrimination because Delta allegedly failed to discipline male employees who had posted pictures of themselves in uniform. The case was not heard due to Delta filing for bankruptcy.
• ‘Work Sux’ – A Warehouse employee was dismissed for writing on her Bebo page that ‘work sux’, and working until midnight was ‘gay like the management’. When the employer read the comments, she was fired for serious misconduct. The employer said the online comments had brought The Warehouse into disrepute.
• ‘Blackmailed by Management’ – An employee who worked as a personal carer at an aged care facility, created a website accessible by anyone. On her website, the employee published resident information and pictures without resident consent, and made inappropriate comments such as referring to her shifts as a ‘bitch’, and alleging that she was ‘blackmailed by management’. She was terminated for breaching the confidentiality agreement and for insubordination. Her dismissal was upheld.
In the above cases, some of the material was posted using the employer’s internet access, and during work time, but much was not. The employee used their own computer, outside work hours.
However conversely, many organisations view social networking websites as a potential forum to recruit suitable candidates, to network with like minded persons or to send a themed message.
So what can you do?
Employers need to think very carefully before they allow employees to become ‘friends’ on their social networking sites.
• Develop a social media policy which outlines precisely what is acceptable and unacceptable, in regards to the use of social media both during business hours and after hours.
• Train and educate your staff via short awareness raising sessions, or at staff meetings. Don’t just simply write a policy, email it to your staff, and except everyone will read it. Make sure they know their obligations.
• Don’t limit yourself to just the internet; decide your position on text messaging and portable devices like iPods and memory sticks.
• Be fair; if you decide to discipline one employee, make sure you are treating all your employees fairly, and in a similar manner subject to the facts of each case. Generally, if the conduct damages the employer’s reputation or business relationships, or internal employment relationships, then the employee’s employment may be in jeopardy. Each case should be dealt with on its own merits.
• Watch your back; if Managers/Supervisors have a social networking account, then don’t invite your employees to become your ‘friends’ and vice versa. Do you really want your employees reading everything you post on your site?
“Don’t let an online social networking site become a web trap for you or your staff.”
If you have any questions regarding social networking issues within your organisation, or other concerns in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au
(Lawyers Weekly) http://www.lawyersweekly.com.au/blogs/for_employers/archive/2009/11/24/managers-warned-to-watch-their-backs-on-facebook.aspx
(Phillips Fox) http://www.dlaphillipsfox.com/content/upload/files/NZ_Employment_Bulletin_DPF2085_March_2010_U.pdf
(Allens Arthur Robinson) http://www.aar.com.au/med/pressreleases/pr02nov09.htm