Articles: 2016 / January / 19

Is your business protected with a social media policy? 19.01.16

How an Employee’s temptation to tweet, text or tell all on social media can have dire consequences for your business

The proliferation of social media in society has generated many problematic issues for employers. The misuse of social media by employees can have a devastating effect on an employer’s reputation, can lead to the unwanted sharing of confidential information, and can also provide a platform for workplace bullying and harassment.

Social media tools such as Facebook, Twitter and Snapchat now provide people with a pervasive and relatively unregulated means of expressing themselves. This can have serious implications for employers, especially if their social media policies are outmoded or inadequate.

One snapchat threatens the reputation of the St Kilda Football team

Even sophisticated employers find managing employees’ social media use challenging. Take the example of AFL footballer Jake Carlisle who gained notoriety after being caught on film snorting a substance. The film in question was shared via the social media tool Snapchat causing unwanted publicity for the St Kilda Football Club. This publicity may have a longer lasting impact when it comes to retaining club sponsors. It has resulted in harsh disciplinary measures for Jake, administered by both his employer, the St Kilda Football Club, and the AFL.

The incident poses an alarming question. If AFL players, who are under constant public scrutiny, are still prone to misusing social media, what can other employers do to implement control over the information their employees post on social media?

It starts with employers making their position on social media use crystal clear to their employees.

Do your employees know their responsibilities regarding social media and its use? Are you aware that even when your employees are using their own personal social media accounts, as their employer you could be held vicariously liable for their conduct on social media?  

How can employers minimise the misuse of social media in the workplace?

  1. First, it is vital that employers communicate to their employees clearly and unambiguously, what constitutes acceptable social media use in their workplace. This needs to be implemented beyond a policy, through ongoing communication and education.
  2. Secondly, employees must be made aware that misuse of social media, in a manner which can be connected to their employment or workplace, may lead to the termination of their employment. Many employees think their misuse of social media will result in a low level warning of some type and are often shocked to learn that in fact, it can lead to their instant dismissal.

Why the misuse of social media can lead to termination of employment

If there is a connection between the content of the post on social media and the employee’s employer or workplace and the content of the post:

  • constitutes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of their contract of employment; or
  • causes serious and imminent risk to the health or safety of a person, or the reputation, viability or profitability of the employer's business; or 
  • provides evidence that in the course of the employee's employment, the employee engaged in: 
    1. theft;
    2. fraud;
    3. assault; or
    4. the employee being intoxicated at work,

then the employee’s conduct constitutes serious misconduct which is grounds for instant dismissal.

Employer held vicariously liable for an employee’s blog post

It may seem unlikely that an employer can be held liable for what an employee posts on social media, but it does happen. In the 2011 Herald and Weekly Times case[1], the Herald and Weekly Times (publisher of the Herald Sun) was held directly liable as publisher, and vicariously liable as Mr Andrew Bolt’s employer, for Mr Bolt’s breach of the Racial Discrimination Act 1975 (Cth). The breach included Mr Bolt posting content on the Herald Sun blog (outside of the workplace and in Mr Bolt’s own time) that constituted racial discrimination.

The lesson to be learnt here is that if an employee is engaging in discriminatory or sexually harassing conduct on social media, even if it is outside of work and not in the course of the employee’s employment, if there is a connection between the post and the employee’s workplace or business, the employer may be held vicariously liable for that employee’s misconduct.

Will your social media policy stand up to the test?

It is absolutely essential that employers have a social media policy in place which clearly defines the employer’s position with regard to the use of social media in the workplace. We also advise employers to have a clearly structured disciplinary and misconduct policy that prescribes the consequences for employees who engage in conduct on social media that constitutes serious misconduct.

With the Australian workplace relations legal landscape constantly changing, and the reach of social media continuing to expand, don’t run the risk of being caught with a deficient social media policy in your business.

If you would like further advice on a social media policy, or would like your business’s current social media policy reviewed to ensure it is legally compliant, please contact one of our team of solicitors who will assist you.

 

[1] Pat Eatock v Andrew Bolt and the Herald & Weekly Times Pty Ltd (2011).

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