Social media and the workplace

In a 2011 Fair Work Commission decision, an employer was ordered to reinstate an employee who was dismissed for allegedly derogatory and harassing comments about managers posted on their personal Facebook page (Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444). The dismissal was deemed to be unfair because the employer failed to have an adequate social media policy in place that provided for the discipline and termination of employees whose conduct could be deemed inappropriate.

This particular case is just one of a number of high-profile cases which have brought to light the argument of whether it is reasonable for employers to control the actions of employees outside of work. It is becoming increasingly common for businesses to implement a social media code of conduct or policy that attempts to protect the business from potentially damaging comments or actions by its employees.

One of the common enquiries to the Institute HR Advisory Service comes from members wanting to know what lengths they can go to in their policy to manage employees' conduct on social media platforms such as Facebook, Instagram and Twitter.

Implementing a social media policy

In implementing a social media policy or code of conduct in the business, it is important that the policy:

• incorporates a definition of social media
• is consistent with the Institute's Code of Professional Conduct
• is consistent with the employer’s own approach to how it uses social media websites, for example, the language and methods it adopts for its advertisements and communications with its customers
• is consistent with the employer’s values, reputation and other workplace policies (particularly those relating to bullying, harassment, discrimination and confidentiality)
• contains a clear definition of who the social media policy applies to
• sets out when social media websites can be accessed
• clarifies what employees can and cannot write on these social media websites about colleagues, the employer, the profession, or outside business clientele and whether they are authorised to represent the business in any of their comments on these social media websites
• may include a positive obligation on employees to report any breach of the policy by other employees
• sets out disciplinary procedures for a breach of the policy.

It is also critical that the employer trains the employees effectively in the policy, and that they are aware of the policy and how it operates.  

It is a common misconception that under the principles of free speech an employee can have free reign to make comments in their own personal lives and escape repercussions. Under common law, an employer can take steps to protect its legitimate business interests, which includes an employee’s conduct outside of work.

The Institute HR Advisory Service recommends that a combination of an adequate and comprehensive written policy on social media, as well as the education of employees about how their conduct both inside and outside of work can be misconstrued and interpreted by others differently, can help an employer adequately protect their legitimate business interests. By having a well-drafted policy combined with education, employers are also maximising the chances of being able to legitimately control the conduct of employees and minimise the risk of facing unfair dismissal claims such as the one presented in Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444.

Further reading

For a clear understanding of responsibilities and risks when using social media platforms, refer to the Acumen note Online ethics.

For more information on education and managing the conduct of employees on social media forums, or a sample social media policy, refer to the Institute's HR Hub as below: