Macquarie University’s research into the topic uncovered a number of cases where the existence of a detailed social media policy, as well as its clarity with employees, was paramount to the Fair Work Commission’s decision.
Once case involved an employee’s termination after posting threatening comments on Facebook about their pay, which a number of co-workers saw.
While the FWC acknowledged that writing threatening comments on a public forum like Facebook could not reasonably be seen as private, the lack of experience with social media of the employee, as well as the company’s lack of social media policy – was critical in ruling the dismissal as unfair.
Importantly, the fact the comments were made on the employee’s home computer outside of work hours was not deemed relevant.
In essence, these cases demonstrate the necessity for a social media policy, and for organisations to ensure their workers are aware of them. Thornthwaite stated that the following factors will often come into play when social media posts are considered in front of an industrial tribunal:
- Nature and severity of the post
- The source of the post
- Whether an employer/organisation is named
- If the post is public
- If co-workers have seen the post
- If the employer’s business or industry has been damaged
- If the comment was impulsive or deliberate
“The FWC has more recently come out and said essentially an organisation needs to have a social media policy. Not only do they need to have a policy in place but they need to widely communicate it so staff understand it,” Thornthwaite said.
An important factor to consider is how the workforce, unions and other groups may respond to elements of the policy. Thornthwaite cited Commonwealth Bank’s attempt at introducing a policy which included staff being punished for not ‘dobbing in’ colleagues.
“Many organisations have provisions in their social media policies that require other employees to dob in online activity that could be considered inappropriate,” she explained. “Other employees are essentially charged with the responsibility to report on employees if they know about things.”
This has resulted in the ‘hunting trip’ phenomena, in which employers and individuals alike will seek out other’s online activity that may be bubbling below the surface. This can result in the anonymity some strive for online (using a false name on Facebook, or keeping a blog under a pseudonym) to be compromised.
However, while many organisations enforce these policies, Commonwealth Bank’s attempt was thwarted by the financial services union. “That then became the subject of industrial negotiation when it all blew out and they modified those provisions.”
Thonrthwaite also added that organisations must be aware that people require an outlet to discuss work, so attempting to clamp down on all conversation is problematic.
“What also needs to be taken into account is employees’ needs to talk about work with friends and colleagues. People do need to be able to talk about work and working conditions, for instance. If you close down all private discussion, that’s not helpful either.”
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With the line blurring between online life and real life – and employees not always aware of what is appropriate and what isn’t – Dr Louise Thornthwaite, senior lecturer at Macquarie University’s Faculty of Business and Economics - warned employers must have a social media policy in place.