Poor social media management can damage a business, but what happens when the people doing the harm are your own employees?
Calling your Muslim boss a “bacon hater” on Facebook and praising a bear’s potential to rip off your managers’ heads and “chew up and spit out” their lifeless bodies would be a sackable offence, you’d think.
But not if your company doesn’t have a social media policy.
That was the outcome of the Glen Stutsel v Linfox Australia unfair dismissal case in 2011. A Linfox truck driver for 20 years, Stutsel had posted distasteful comments about his managers on his Facebook page, and was subsequently sacked.
Stutsel said he’d thought his Facebook profile was on maximum privacy settings and that the comment could only be viewed by his 170 online friends. Unfortunately it wasn’t. But what swung the decision in Stutsel’s favour was that Linfox had no clear social media policy.
“In the current electronic age,” said the Fair Work Commission, having no social media policy is “not sufficient … many large companies have published detailed social media policies and taken pains to acquaint their employees with these policies”.
The case sent a clear warning to businesses in Australia that it wasn’t enough to simply tell your employees whether they can or can’t use Facebook or any other social media platform at work. Irrespective of whether businesses engage in social media themselves, they need to establish a social media policy.
What is an effective social media policy?
An effective social media policy encourages positive use of social media while mitigating any potential risks for your business.
As each business is different, there’s no “one size fits all” approach, but it can be useful to look at what other organisations have in their policies and get advice from legal experts. Feedback from employees is useful, too, as it can highlight areas for improvement.
Your responsibilities around social media might be much bigger than you think. Social media guidelines from the Australian Competition and Consumer Commission (ACCC) state that “businesses using social media channels like Facebook, Twitter and YouTube have a responsibility to ensure content on their pages is accurate, irrespective of who put it there.”
Of particular concern is that businesses can “be held responsible for posts or public comments made by others on your social media pages which are false or likely to mislead or deceive consumers.”
What can a social media policy cover?
Social media policies should be written in a way that’s easy to understand. They can cover how the company itself will engage in social media and also provide parameters for employees’ use of social media. And they should clearly explain the consequences for employees who breach the policy.
The policy should also cover employees’ social media activities outside work hours, as illustrated by a second case involving Linfox, this time in 2014.
The transport company had sacked employee Malcolm Pearson after he repeatedly refused to sign the company’s staff acknowledgement of its new social media policy. Pearson challenged the sacking, arguing “as Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work.”
“You need to bring the policies to the attention of the workforce and provide training … if you don’t, then it will be very hard, if not impossible, to discipline an employee for breaching it,”
But the Fair Work Commission upheld the dismissal, noting “a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business… It also serves a useful purpose by making clear to employees what is expected of them.”
The commission concluded: “It is difficult to see how a social media policy designed to protect an employer’s reputation and security of the business could operate in an ‘at work’ context only.”
“Any social media policy still needs to be appropriately directed at protecting the reputation and security of the employer.” – Michael Byrnes, Clayton Utz
While it is tempting to write specific policies for individual social media platforms, the Law Society of NSW advises in its Guidelines on Social Media that a social media policy “should be general so that it can include the large variety of applications”.
What can’t it cover?
Clayton Utz special counsel Michael Byrnes says employees have the right to issue lawful and reasonable directions to employees. “This does not mean that employers can create blanket policies that cover any and all use of social media by their employees, inside or out of work,” Byrnes says.
“Any social media policy still needs to be appropriately directed at protecting the reputation and security of the employer. If it is, it will be lawful, legitimate and reasonable to require compliance with social media policies outside of work.”
Byrnes says most cases of inappropriate use of social media relate to disparaging a business itself or an employee’s colleagues rather than sharing confidential information.
Applying your social media policy
It’s important that your employees understand your social media policy. Simply emailing it out or advertising it on your company’s intranet isn’t enough.
“You need to bring the policies to the attention of the workforce and provide training … if you don’t, then it will be very hard, if not impossible, to discipline an employee for breaching it,” warns legal firm Clayton Utz warns in its 21-page Guide To Social Media.
In Victoria, the Department of Justice has produced a catchy video that explains the key elements of its social media policy to staff. Running less than 5 minutes, it gets the information across quickly and effectively.
In applying a social media policy, employers should follow the same procedures they do with other workplace guidelines.
Unless it is an extreme situation, “an individual breach of a workplace policy is unlikely to justify termination”, says Byrnes. However, “a series of breaches may be sufficient where it reflects an employee’s flagrant disregard for policies and procedures.”
What about former employees?
The situation is trickier once a person stops being your employee. Byrnes says former employees would not normally be covered by a social media policy as they’re no longer on the payroll. (He also points out that larger businesses are unable to sue for defamation.)
But if an agreement is made when a person ceases employment, it could include a non-disparagement clause. That’s worth considering for any employer who doesn’t fancy a day in court.
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