Outside attention can create a sense of urgency when employees misbehave on social media, but employers should resist prioritising speed over due process when disciplining them, a workplace lawyer says.
A social media “incident” caused by an employee can create intense media scrutiny about how the employer is dealing with those responsible, said Ashurst senior associate Heidi Fairhall (pix).

Employers will be judged in the public domain by the adequacy of their response; their reputation will rest on getting that right – but they should not let a sense of urgency compromise due process, Fairhall says, particularly when “messing up” could damage their reputation even more.

“The first and really critical issue is, you need to establish for yourself the circumstances of the conduct: when it happened, where and how,” she says.

“That involves making your own enquiries – not relying on what the media is reporting but ascertaining for yourself what the conduct was, so you can properly assess how it connects to the employment, and whether you have a legitimate basis for taking disciplinary action – if that is what you are considering.”

Employers with a social media policy already in place should consider what it says, whether they can show it’s been enforced in the past, and whether employees have received training on its content.

In the 2011 case of Stutsel v Linfox Australia, which involved a truck driver who posted sexually and racially offensive comments on Facebook, the Commissioner was “very critical” of the fact the employer had no social media policy to regulate or set expectations about employee behaviour online, Fairhall says.

Before taking disciplinary action, “you need to really make sure the conduct impacts on the employment relationship or damages your interests or reputation, or is incompatible with the duties of employees by virtue of the policies and the expectations that you’ve placed on employees,” she says.

The 2015 case involving SBS reporter Scott McIntyre – who was sacked for breaching his employer’s code of conduct after he tweeted some derogatory comments about ANZAC Day – had significant potential to seriously damage his employer’s brand, Fairhall notes.

“SBS received a lot of public scrutiny about the case, and it shed an unfortunate light on the employer by virtue of the fact it was a reporter who was espousing statements that could be attributed to SBS,” she says.

In contrast the 2010 case of Fitzgerald v Escape Hair Design, which involved an apprentice who was sacked over a sarcastic comment that referred to but didn’t name her employer, the Commission found an insufficient connection to the workplace and no real evidence the business had been damaged.

Even when there is external pressure to act quickly, “it’s really important to gather and consider your evidence before taking disciplinary action”, and avoid pre-empting the outcome, Fairhall says.

“You still need to follow any procedures that you have in place for the conduct of disciplinary matters and you should always afford procedural fairness – in accordance with your policy, but also as a general principle.”

This means providing the employee with an opportunity to respond to allegations, giving their response due consideration, and gathering and considering any other available evidence before making a decision, she said.

“You need to consider what you’ve done in the past in relation to social media incidents, whether the severity of the conduct is in parallel with other disciplinary outcomes that you have meted out to other employees for similar conduct, and whether you’re treating other employees involved in the incident in the same way.”

In the Linfox case, other employees had engaged in similar conduct online, but were not disciplined. The disparity contributed to the Commission’s decision that the termination was harsh, unjust and unreasonable, Fairhall says.

The Commission also found the statements were not deliberately offensive. “[It] found they were a chain of comments with the flavour of friends letting off steam – trying to outdo one another in being outrageous – and that they weren’t seriously intended to be offensive,” she says.

“The Full bench recognised you should not impose unrealistic standards of behaviour and discourse on [staff], or ignore the realities of workplaces and the fact people are going to engage with each other online – but it did recognise that posting derogatory comments could be a valid reason for termination of employment.”

The nature of the comments made and how widely they’ve been circulated will be a key consideration in a dismissal dispute. If posts can be shared and accessed beyond the workplace, and can become permanent even after the original is removed, they will be considered more serious, Fairhall added.

It is worth trying to take down potentially damaging posts as soon as possible, she adds.

“If you have a real need to manage an incident – if there’s a post out there that’s really damaging to your business – don’t be afraid to direct the employee to remove the post.

“Inevitably, if it’s causing damage to your business you’re going to have the right to direct the employee to do that, and it’s a good way of at least limiting the damage while you work out what the ramifications of that conduct will be,” she said
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