Facebook in the Workplace

Facebook in the Workplace

Facebook in the Workplace

In two recent cases handed down by Fair Work Australia, the dangers of mixing social media with the workplace are put into sharp contrast.

The “Good Guys” Case

In O’Keefe v Williams Muir’s Pty Ltd t/a Troy Williams The Good Guys [2011] FWA 5311 (the “Good Guys” case), Deputy President Swan had to determine whether O’Keefe’s employment as an IT Technician was unfairly terminated.

Following the final act in a 6 month history of pay discrepancies, O’Keefe wrote on his Facebook wall “wonders how the **** work can be so ******* useless and mess up my pay again. **** are going down tomorrow”.

When his employer found out about the posts, they came to the view that the comments constituted a threat against the Operations Manager and terminated his employment for gross misconduct.

O’Keefe gave evidence before FWA that his Facebook account was on the highest security level, and was not open to the general public.  Of the 70 people who could see his page, only 11 were co-workers.

It was found by FWA that the employer, whilst having general policies as to employee conduct, did not have any social networking specific policies.

Deputy President Swan did not take kindly to the submission that the comments were made at home and away from the workplace, stating that “the separation between home and work is now less pronounced that it once used to be”.

In dismissing the Application, Deputy President Swan found that O’Keefe had breached the various policies in force in the workplace, and that there was a sufficient causal nexus between the Facebook comments and the employment.

The “Linfox” Case

In Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444 (the “Linfox” case), Stutsel had made an Application for an unfair dismissal remedy following his termination for a number of comments on his Facebook page regarding 2 of his managers.

The comments were grouped into four broad categories – threats of physical violence involving a bear, allegations of dishonest and underhanded behaviour, allegations of sexual misconduct and comments regarding one manager’s religion.

Stutsel gave evidence that his daughter set up his Facebook account for him, and he understood that it “was a place where [he] could privately interact with a group of people [he] had accepted as Facebook friends”, and further that his page was not open to the public.

Commissioner Roberts drew the important distinction between threatening behaviour (as in the Good Guys case), and the comments in this case, which had “much the flavour of a conversation in a pub or café”.

He also had concerns about the lack of consistent approach with the other staff members involved in the comments who had not been disciplined.

Linfox did not have a specific policy as to social network use.

Commissioner Roberts found that Stutsel had been unfairly dismissed and ordered his reinstatement.

Summary

A number of important statements can be taken from the Good Guys and Linfox cases.

Firstly, the importance of a Social Networking Policy cannot be understated.  With the increasingly pervasive nature of the internet, the standard polices as to employee conduct just do not cover the range of difficulties employees can get themselves into.

Secondly, the context of comments made on Social Networking is essential in determining the factual background and what steps need to be taken by employers.  In the Good Guys case, the context led to a genuine concern of harm on the part of the Operations Manager.  In the Linfox case, comments as to the violent nature of bears and what they could do to certain managers were taken as farfetched and ridiculous.

Thirdly, it is important to isolate who is involved in the comment thread of the Facebook page – if more than one employee is involved, each of those employees must be disciplined in a similar manner.

Fourthly (and finally), the relative knowledge of the employee in question must be ascertained.  In the Good Guys case, O’Keefe was a computer technician, and knew full well what the security settings on his Facebook account allowed others to see.  In the Linfox case, Stutsel was a middle aged truck driver – not a demographic known for its intimate knowledge of all things social networking related.

Employers must take notice of the first statement – if you employ people, a Social Networking policy is an absolute must.

If you own a small business, we strongly recommend coming in to see the Hatzis Lawyers Litigation team about whether your current Social Networking policy is adequate to cover you and your business risks.

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