seminar: social media in the workplace - 30 november 2016
TRANSCRIPT
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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
5
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?
7
> 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
8
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
17
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 [email protected] Email [email protected]
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