10 May 2012
The Invasion of Social Media - Employees Privacy & Employers Rights
Whether employers embrace social media or are still resisting the current commercial and social pressure to be part of this brave (somewhat new) world, the reality is that it is an integral part of most employees’ day to day lives and it is here to stay!
The controversial and contentious issues remain and may only become more contentious as the commercial world races to keep up with technology however, the key question is: Now that employees are increasingly and openly sharing their private life in the public domain, what powers do employers have to rely on or access that information as part of employee management - Is the relatively clear historical line between work and private life becoming completely blurred?
Historically, both common and statutory law have recognised and promoted that an employee is entitled to a private life and that an employee's rights in this regard have been, to a large degree, protected. The significant and increasing use by employees of social media as both a personal and work-related tool not just for networking or socialising, but also for doing business (whether via phone, android, computer or the next revolutionary technological device), means that not only does an employer potentially have more access to 'personal' details of or about an employee, and a greater ability to monitor an employee's movements, there is also an increased risk that an employer's information or details about the employer are 'published' and become part of the public domain where historically, such information could be limited to persons actually engaging in the conversations!
As would be expected, it has now become a task for the judiciary and the tribunals to determine what will be acceptable conduct of both employers and employees in this brave new world - the position to date however is by no means conclusive.
A recent example of employee monitoring occurred in Dekort v Johns River Tavern  FWA 3389 in which a bar attendant was dismissed after Facebook photos showed him celebrating on New Year's Eve when he claimed to be unfit for duty. In this case, the Tribunal had no hesitation in finding that the Facebook photos were clearly evidence upon which the employer could rely to dismiss the employee for misconduct. A plethora of recent cases evidence employers seeking to rely on such conduct as serious misconduct, warranting summary dismissal. What Fair Work Australia has made clear however, is that it is not always the case that such conduct will warrant dismissal.
In Dover-Ray v Real Insurance Pty Ltd  FWA 8544, the Applicant was dismissed for comments that she posted on her MySpace Blog regarding the outcome of a sexual harassment investigation undertaken into a complaint the Applicant made about her manager. In her Blog, the Applicant posted offensive comments about her employer and claimed that the investigation undertaken was 'corrupt'. In determining that the dismissal was not harsh, unjust or unreasonable, Fair Work Australia found it relevant that the Blog was easily accessible through a Google search and that her MySpace friends included other employees of Real Insurance. The Blog could easily therefore be accessed and read by others within the workplace.
Conversely, in Glen Stutsel v Linfox Australia Pty Ltd  FWA 8444, Fair Work Australia ordered reinstatement of the Applicant where his employment was terminated for comments he posted on his publically accessible Facebook page. Comments about one male manager were racially derogatory, while comments about a female manager amounted to sexual harassment. Of relevance here was the fact that the Applicant believed that his Facebook account was completely private and that the comments posted on his page could only be viewed by himself and those persons he had accepted as Facebook friends. Further, the main offending comments that amounted to sexual harassment were not made by the Applicant. Linfox has since appealed this decision.
Many employers have recently experienced employees spending significant time on social media websites during work hours and on work computers or devices. Whilst excessive use of the internet for personal purposes may constitute misconduct, employers need to ensure that they have sufficient supporting policies and procedures as well as other relevant documentation to successfully argue such a position. Fair Work Australia found such evidence was not available in Richard O’Connor v Outdoor Creations Pty Ltd  FWA 3081 where the Applicant was dismissed the day before his resignation was due to take effect, after Outdoor Creations discovered that he had been using the Google Mail chat service instead of working. Relevantly, the employer admitted that he was happy with the quality of the Applicant's work prior to him giving notice of resignation. Further, neither party provided independent evidence about the use of the internet during work hours, leading Fair Work Australia to say that there was insufficient evidence to establish that the Applicant was in fact guilty of misconduct.
What is clear from the few examples above is that there are no clear rules when it comes to dismissals related to inappropriate social media use. What is clear however, is that employers should ensure they have an appropriate social media policy as well as suitable other policies (such as internet usage, disciplinary and discrimination) so that both parties are clear as to each other's obligations. Employers must remember however that a policy alone does not solve all problems. All employees must be aware of the policy, it must be enforced, managers must act consistently with the policy's guidelines and importantly, as the Commonwealth Bank discovered last year, the policy itself must be appropriate, fair and not unlawfully encroach on employees' private lives. The Commonwealth Bank's policy sought to impose an obligation on employees to immediately report to their manager if they discovered any inappropriate or disparaging material posted by any person, including non-employees, by means of social media. The Commonwealth Bank has since amended the policy pursuant to complaints by the Finance Sector Union.
The years ahead will most definitely provide some interesting and hopefully useful guidance for employers. It is yet to be seen whether Australia will follow international trends to protect civil liberties (for example: the state of Maryland just passed the first bill in the US that bans employers from asking for the social media passwords of job applicants and employees) or whether it will simply continue to set general parameters through case law. Either way, employers must keep abreast of developments in this area and maintain appropriate policies and procedures to ensure that they establish and maintain an appropriate lawful balance between: protecting and managing their business and employees, and an employee's right to enjoy their personal life in the complex and ever changing world of social media.
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