Facebook in the Workplace: An Update

Facebook in the Workplace: An Update

Facebook in the Workplace: An Update

We recently reported on some recent decisions of Fair Work Australia in relation to the importance of a Social Media Policy in the workplace.

Once of the cases we noted was Stutsel v Linfox Australia Pty Ltd[2011] FWA 8444.
Linfox appealed that decision, with the Full Bench’s decision being recently handed down in Linfox Australia v Glen Stutsel [2012] FWAFB 7097.
Ultimately upholding Commissioner Robert’s decision at first instance, the Full Bench expressed reservations about the extent to which the Commissioner had gone to to reach that decision.

In particular, the Full Bench said:

 

[25] … In each case, the enquiry will be as to the nature of the comments and statements made and the width of their publication.

 

Further, at [26]:

 

… We do not agree altogether with this characterisation of the comments.  The fact that the conversations were conducted in electronic form and on Facebook gave the comments a different characteristic and a potentially wider circulation than a pub discussion.  Even if the comments were only accessible by the 170 Facebook “friends” of the Applicant, this was a wide audience and one which included employees of the Company.  Further the nature of Facebook (and other such electronic communication on the internet) means that the comments might easily be forwarded on to others, widening the audience for their publication.  Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees. (emphasis added)

 

Whilst our warning in our earlier piece was aimed more at Employers to ensure that they had an appropriate Social Media Policy in place, Employees should also pay heed to the above statements made by the Full Bench – Fair Work Australia will not be as leniant in the future and may not be so willing to take into account ignorance of the scope of the audience or the relevant functions available or known to the poster.

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