In brief - Employers should educate their workforce about social media and internet usage
It is recommended that employers implement clear policies about internet access in general and in particular, the use of social media sites while at work, as well as how staff may discuss work related topics outside of work hours. All workplace policies must be effectively communicated to all staff (employees, contractors and volunteers), who should sign an acknowledgement that they have read the policies and understand them.
Access to internet during work hours
Businesses have a legitimate interest in maintaining staff efficiency. While access to the internet may be required for some functions, it may not be required at all times for all staff. If a business decides to restrict access to certain sites, those decisions should be set out in writing in a policy available to all staff.
Traditional desire of companies to control the message
Social networking and social media provide an inexpensive platform to promote businesses, their products and services to a global audience.
However, companies have traditionally restricted who can communicate on their behalf in order to control the information being publicised and to try to maintain quality control of communications in terms of timing and the message being conveyed.
Unauthorised communication of business information can harm a business’s brands; frustrate, or worse, damage relations with customers and suppliers and may breach a company’s obligations, including but not limited to those related to confidential or personal information held by that company.
Information not to be disclosed to third parties
Businesses should educate all staff about the duties that relate to information that they have access to as a result of their job. In general, that information should not be disclosed to third parties online or otherwise, unless required to do so by the company.
Information that is restricted from disclosure includes any information that brings a competitive advantage to that company, helping it to provide its services in a more effective manner than any current or prospective competitor. Lots of information known within a company may be subject to obligations to third parties to keep that information confidential, or to use that third party information only for specific purposes. Information about staff, business plans or business activities may be common knowledge within a business, but not appropriate for disclosure to third parties.
Educating staff about brands and slogans
Use of brands and slogans should also be closely monitored. Staff should be educated that brands and slogans of their business and other parties’ businesses should only be used by specific people within a business to prevent misuse. Finally, the policy should include a statement that only persons authorised in writing may make statements on behalf of the company.
An education program of all staff about who can communicate on behalf of the business and what types of information may not be disclosed outside of the business will help to prevent damaging (although possibly well intentioned) communications being made by staff, online or otherwise.
What to include in your social media policy
We recommend that consideration be given to the following steps when implementing a social media policy:
- Clearly identify who and what conduct is covered under the policy.
- Prohibit employees from associating themselves with the company via private social media forums without prior consent.
- Confirm that the policy applies at all times, whether or not the employee is on work premises.
- Confirm that staff who are professionally representing the company in social media must conduct themselves in accordance with all company workplace policies.
- Include provisions that any official company social media content must comply with any applicable company protocols.
There have been some notable recent examples of misuse of business information online via social media.
Keyboard revolt: Twitter disaster unleashed
In January 2013 British company HMV discovered the backlash an angry employee could cause on Twitter via the company's account.
"Mass execution, of loyal employees who love the brand" was posted on the company's official HMV Twitter feed along with comments such as "There are over 60 of us being fired at once!" and "Under contract, we've been unable to say a word - or more importantly - tell the truth".
These tweets were posted by a disgruntled employee whose position had been made redundant by the company. The unflattering comments were deleted within minutes of being posted and the account was allegedly closed within half an hour of the cyber mishap. By that stage, however, some of HMV's thousands of Twitter followers had already taken screen shots of the tweets and disseminated them further.
Online rebellion: Facebook comments gone rogue
The potential problems stemming from social media use arise not only in the workplace, but can also present themselves in the form of comments made by employees in their personal time.
In the case of Stutsel v Linfox Australia Pty Ltd  FWA 8444
, a truck driver was summarily dismissed for derogatory comments posted on his Facebook profile about two of his supervisors. Linfox did not have a social media policy in place at the time to allow the company to address the matter.
The Commissioner commented about the lack of a policy, stating that: "[i]n the current electronic age, this is not sufficient and many large companies have detailed social media policies and have taken pains to acquaint their employees with those policies."
While the court found that Mr Stutsel's comments were inappropriate, he was not guilty of serious misconduct and there was no valid reason for his termination. Having a social media policy in place may have not only assisted in avoiding the issue from the employer's perspective, but may have also emphasised to the employees the risks they are taking when resorting to the world wide web in order to express their discontent with their employers.
Communicating the social media policy effectively to employees
It is important to remember that even the most well drafted policy cannot be enforced if it has not been effectively communicated to employees.
Having employees sign an acknowledgement of the policy to retain in their employment file will assist in safeguarding against any later claim that the employee was not sufficiently notified of the policy.
A recent decision in Pearson v Linfox Australia Pty Ltd  FWC 446
highlighted the importance of regulating workplace policies. The employee, Mr Pearson, had crossed out "I understand" and replaced it with "I refuse to sign" in Linfox's workplace policy agreement.
Mr Pearson was dismissed from his employment after receiving a series of warnings for breaches of workplace policies and for his refusal to sign. Upon termination he brought proceedings for unfair dismissal against his employer.
The case was dismissed on the basis that employers have the right to issue lawful and reasonable directions to employees. In respect of the policy documents, the Commissioner noted that it was "a legitimate exercise in acting to protect the reputation and security of a business".
Regular monitoring and supervision
To assist in enforcing the social media policy, we recommend ensuring that an internet usage policy is also in place with provisions dealing specifically with social networking. This policy should be read and understood by all staff and signed in addition to the social media policy.
We also recommend the following guidelines for monitoring and enforcing the social media policy:
- Ensure that all official social media networking accounts (i.e. those that appear to be statements of the business) are effectively controlled and are monitored.
- The social networking policy should also be reviewed regularly to ensure compliance.
- Training sessions should be conducted with employees prior to, and periodically during, their use of the company's social networking accounts.
- Limit the number of employees who have access to the company's social networking accounts.
- If practical, posts should be signed off by someone with authority before they are posted on the company's social page and/or account.
- If employees are required to use the company's account, it is recommended that the process be supervised by management. The password for the account should be updated regularly and all email notifications should be sent to someone in a position of authority.
- Limit the number of joint/multiple accounts associated with the official company account to avoid instances of accidental publishing in the wrong account.
Know the limits of your power
It is important to remain mindful that a social media policy is not an avenue for employers to regulate any and all social media use by staff.
In Wilkinson-Reed v Launtoy Pty Ltd t/as Launceston Toyota  FWC 644
, a manager contacted her boss's estranged wife via a private Facebook message. Her boss logged into his wife's Facebook account and found the comments, which contained negative views of him. The manager had been close friends with the wife; nevertheless, her employment was terminated on the basis that she had breached the company's social media policy.
The employer's social media policy contained a provision that employees should not make derogatory comments about the company, colleagues, customers or suppliers on the internet. The Commissioner, however, found that the communication did not breach the policy and stated: "While the Facebook conversation may have been conducted by means of social media it was in the manner of a private email".
Social media can be both friend and foe to employers. What we can learn from the cases above is that businesses must establish policies that clearly set out expectations of their employees' use of social media. It is important that these policies are brought to the attention of all workers.
Carefully consider your response to suspected policy breaches
If you become aware that an employee has made comments about their employment on a social networking site, consider the severity of the comments made before taking action. It may be a natural reaction to move to immediate disciplinary action, but it is far better to make a realistic assessment in order to minimise the risk of litigation where an employee challenges termination of his/her employment.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.