What do you do when you find out that one of your employees has sent a ‘d%#k pic’ on Snapchat to his co-worker who is currently at home on maternity leave with her newborn baby? The picture is sent out of work hours from the employee’s personal mobile phone… (1)

Or another employee posts sexually explicit memes on Facebook – one of which contains a sexual connotation referring to a female colleague? (2)

These scenarios are just two examples of situations that have led to a dismissal, and the dismissed employee challenging it by bringing an unfair dismissal claim in the Fair Work Commission. To defend the claim, each employer in question was forced to explain the reasons for dismissal and why dismissal was justified. Fortunately, those employers had social media policies in place and could demonstrate the employees were aware of them. In reliance on their policies, the employers were able to successfully defend the unfair dismissal claims.

Some of the key legal reasons a policy is important

What happens if you terminate an employee for social media activity in the absence of a social media policy? The answer is simple – you may not be able to be able to successfully defend an unfair dismissal claim, or another claim associated with the disciplinary action.

It is also important to have appropriate policies in place that regulate staff behaviour – including a workplace behaviour policy and a social media policy – in light of workplace health and safety obligations. Every business has obligations to eliminate or mitigate, so far as is reasonably practicable, risks to health and safety at its worksites. One of the greatest risks to psychological health and safety is inappropriate workplace behaviour. Even before the COVID-19 pandemic, social media was blurring the lines between one’s work and personal life, but with such a large contingent of the workforce now either working from home and/or using smart phones, it is even more common for inappropriate conduct to take place offsite and digitally, commonly over email, text message or social media.

By having clear guidelines in place, and setting rules and expectations that your staff must follow, you will be in a solid position to take disciplinary action in the event of inappropriate social media use. And when coupled with staff training and communications, your business will be reducing the risk of your staff engaging in inappropriate behaviour over social media in the first place – as always, prevention is better than cure.

Courts and tribunals have recognised that:

• social media (and other internet posts) can have a sufficient nexus to the workplace to permit an employer to take disciplinary action, and
• an employer is entitled to regulate the conduct of its employees online (within limitations).

Protecting your reputation and brand

Another important reason to have a social media policy in place is to protect your business’ reputation.

Many of our clients are grappling with the reputational damage that social media (including internet posts/blogs) can have on their businesses. Getting the balance right between controlling out of work conduct (and potentially infringing on employees’ personal freedoms) vs the need to uphold the reputation of the brand is not an easy task.

A well-drafted social media policy can assist with regulating the conduct of employees online. Having clear rules in place should go some way to reducing the risk of employees making poor choices online or posting (or re-posting, ‘liking’ etc) without stopping to consider the broader context, i.e., their employment, the impact on the brand etc.

So, what should a social media policy cover?

Typically, a social media policy will set out:

• the scope of its application (for example, what social media includes, to whom it applies and in what contexts – including out of hours conduct)
• acceptable vs. unacceptable use of social media
• the consequences of breaching the policy, including that personal social media use can still affect employment and result in disciplinary action

Sometimes our clients also include guidelines or practical tips to assist employees to avoid regrettable social media activity.

Having a policy in place is just the first step – you also need to make sure that your employees are aware of it, and preferably have also received training in relation to the policy (as well training on your workplace behaviour policy).

With large numbers of employees working from home amidst the Omicron outbreak, now is an ideal time to implement a new social media policy, or to review the terms of your existing policy.

(1) Fussell v Sydney Trains [2019] FWC 1182
(2) Thompson v 360 Finance Pty Ltd [2021] FWC 2570

This is general information only, is current as at 24 January 2022 and may not be applicable to your organisation or situation. It is not a substitute for legal advice and it is important that you obtain specific advice. 

Liability limited by a scheme approved under Professional Standards Legislation.

© 2022 Toop Workplace Law Pty Ltd