No social media policy results in employee reinstatement

A recent Fair Work Australia (FWA) decision highlights the importance of employers having a social media policy that deals with employee online activities such as the use of Facebook and Twitter. 

In the case, an employee posted inappropriate comments about his managers on his Facebook page.  The comments referred to, amongst other things, one manager as a ‘bacon hater’ and the other manager as providing sexual favours for industrial peace.

One of the managers to which the comments applied, managed to read the comments online and subsequently lodged a complaint against the employee.  The employer carried out an investigation of the complaint, interviewed the parties and concluded that the public postings were racially derogatory, sexually discriminatory and harassing of the managers.  The employee was terminated for serious misconduct.

During the FWA hearing, the employee admitted posting the comments but argued that the comments were not derogatory, and merely workplace banter.  The employee also argued that he believed his Facebook account was set up with the maximum privacy settings as it was created by his wife and daughter.  He therefore asserted that his comments were not made publically.

The employer defended the termination at FWA by placing reliance on its induction training which the employee had received.  The employer’s induction training manual included material about equal opportunity and discrimination, but did not cover the use of social media by employees.

FWA accepted that the employee had believed his Facebook comments were private and said that while the racial references were ‘in poor taste’ , they could not be determined to be remarks intended to vilify the manager.  FWA also found that the sexually discriminatory comments about which the manager complained were posted by others on the employee’s Facebook page.  FWA found that the derogatory remarks were ‘an attempt at humour’ and ‘did not contain any credible threat’.

FWA went on to find the termination, whilst procedurally fair, was not based on a valid reason.  Taking into account the employee’s length of employment, FWA reinstated the employee and awarded compensation for lost wages.

FWA commented about the employer’s lack of social media policy in the following words:

‘At the time of [the employee’s] dismissal, [the company] did not have any policy relating to the use of social media by its employees.  Indeed, even by the time of the hearing, it still did not have such a policy.  The Company relies on its induction training and relevant handbook to ground its action against [the employee].  In the current electronic age, this is not sufficient and many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies.  [The company] did not.’

The decision highlights the need for an employer to have a social media policy which identifies the requirements of the employer, sets out the limitations imposed by the employer on employees, and the sanctions for breach of the policy.    

For more information on this case or to discuss a social media policy for your business, please contact:

Ian Curlewis Michael Jensen
Partner Senior Associate
(08) 9288 6756 (08) 9288 6944

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.