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Social media and the workplace

Anthony Massaro Caitlin WalshPrincipal

Associate

30 November 2016

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> Social media cannot not be ignored> It can be a tremendous way to promote

your business and engage with the market

> It can be a tremendous source of reputational and financial risk

Social media

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Starr v Department of Human Services> Starr identified himself as a Centrelink officer in

online discussion boards> Made a number of posts criticising Centrelink

and the Government, including:> “ESL means something totally different for me

here at work – it’s an appointment for the spastics and junkies. Always a joy.”

How bad can it really be?

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> Workplace issues> Bullying, sexual harassment

> Poaching of clients> Poaching or compromising of staff> Disclosure of confidential information> Breach of privacy> Defamation

What else can go wrong?

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> Too many benefits> Staff engagement> Customer engagement

> Can prevent use of social media at work (but do you want to?)

> Can’t prevent use of social media at home> Need to embrace the benefits, and

manage the risks

You can’t ignore it

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Managing the risks

Prohibiting bad behaviour is only one element> What behaviours do you want to encourage?> Develop a strategy> Policy:

> to reflect your strategy> to minimise risks

> Training> to support your policy and strategy

How can you manage the risks?

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> Proactive elements> How you want staff to engage with social media

> What you want to achieve

> Risk management elements> Identify inappropriate behaviour

> Identify consequences

> Monitoring of work IT use

> Downloading of programs and images

An effective social media policy

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Linfox Australia Pty Ltd v Stutsel> Employee posted inappropriate comments on

Facebook> No social media policy in place> Employee claimed ignorance> Dismissal found to be unfair

Dismissal without a policy

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Pearson v Linfox Australia Pty Ltd> Employee refused to sign social media policy

> “…they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech…”

> Written warning, relied upon as part of the reason to dismiss

> Dismissal upheld

…and with a policy

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> Training regarding policy> Training in using the social media

which you encourage> Eg: LinkedIn – basic skills

> Emphasise> Courtesy> Accountability> Permanence

Training

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Disciplining employees for misconduct on social media

Disciplinary processes

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> You can use social media to investigate – but be conscious of privacy

> You can act on after hours conduct – but make sure there is a sufficient connection

> You can discipline employees for conduct in breach of a social media policy – but don’t overreact

> Remember procedural fairness obligations

Jurecek v Director, Transport Safety Victoria> Employer reviewed employee’s Facebook page as

part of misconduct investigation

> Employee accused employer of breach of privacy

> No breach

> Employer can review social media for investigation

> Ensure collection lawful, reasonable (no hacking!) and for legitimate purpose

Investigations and privacy

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> Needs to be a relevant connection between conduct and employment relationship> Does the conduct damage:

> the employment relationship?> relationships within the workplace?> the employer’s interests?

> Is the conduct incompatible with duties?

Conduct outside working hours

Starr v Department of Human Services> Comments were all made outside work hours

> But with a strong connection to employment

> Valid reason to dismiss based on seriousness and public nature of comments

> BUT dismissal harsh> Employee reinstated with no compensation> Even where sufficient connection, ensure

termination proportionate

Conduct outside working hours

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Singh v Aerocare Flight Support Pty Ltd> Baggage/freight handler at airport> Facebook posts appearing to support ISIS> No valid reason for dismissal> Dismissal harsh, unjust, unreasonable> Employee awarded $4,800> Don’t take posts on face value –

investigate properly

Knee-jerk reactions

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Remmert v Broken Hill Operations> Bullying comments on Facebook about

another employee outside work hours> Valid reason for dismissal> BUT dismissal harsh and unreasonable> Employee awarded $28,471 compensation> Ensure employee has opportunity to

respond – procedural fairness> Be careful what you put in writing

Don’t forget procedural fairness

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Social media after employment ends

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Social media post-employment

> Confidentiality obligations> Defamation> Restraints – Planet Fitness

Key messages

> Check your policy> Train your staff> Encourage staff to use social media

responsibly> Make sure that they understand that bad

behaviour on social media can get you fired

Key messages

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Contact details

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Anthony Massaro Caitlin WalshPrincipal AssociatePhone 9609 1501 Phone 8640 2326Email amassaro@rk.com.au Email cwalsh@rk.com.au

Level 12, 469 La Trobe Street, Melbourne, VIC 3000 P: +61 3 9609 1555Level 8, 28 University Avenue, Canberra, ACT 2601 P: +61 2 6171 9900

Liability limited by a scheme approved under Professional Standards Legislation