The combination of social media and a holiday atmosphere makes the festive season a particularly dangerous time of year for employers, warranting "extra care" on their part, says Holding Redlich special counsel Trent Taylor.
The line between work and play can be blurry at the best of times, but this is especially the case when business-as-usual is interrupted by Christmas parties and work functions.
"It's a time when people are probably a lot more candid in their dealings with work colleagues," Taylor says. Add elements like smart phones, social media and alcohol to the mix and the risk of inappropriate conduct is heightened.
"When people are under the influence of alcohol, their inhibitions are often reduced... The risk these days is what would have once been an off-the-cuff comment or remark may be a photograph taken on a smart phone or a message tweeted on Twitter or posted on Facebook.
"Statements made online might be defamatory, disparaging, inappropriate, or they might constitute some form of harassment.
"Comments that would normally be water-cooler gossip or would disappear with time, when they're put up in an online environment, don't disappear.
"There's a permanency to the comments... and once they're put up they can spread like wildfire."
To make matters worse, now that employees are not only connected to friends, family, colleagues and their employer through applications such as Facebook and Twitter, but can also be connected to professional contacts through LinkedIn, there's further risk that unprofessional comments will be associated with, and damage the reputation of, their employer, Taylor notes.
Do you have policies that will strengthen your defence?
In recent years, several high-profile unfair dismissal cases involving social media have been decided in favour of dismissed staff because the employers didn't have appropriate policies in place, Taylor says.
A classic example is the case of Stutsel v Linfox, where a truck driver who had been employed by the company for more than 22 years without incident was summarily dismissed for posting on Facebook racially derogatory, sexually harassing and threatening comments about two of his managers.
Even though he called one of his managers a "bacon hater" and suggested his other manager was giving sexual favours to keep the peace, the court took the view it was water-cooler gossip that the worker didn't realise he had posted publicly.
In deeming the dismissal unfair and ordering the worker's reinstatement, the Commissioner took into account:
- the employer's lack of a policy regarding social media use;
- the employer's differential treatment of other employees who had also made inappropriate comments on Facebook;
- the employee's limited understanding of Facebook privacy and content management; and
- the worker's unblemished record, age and future employment prospects.
"Because of the fact there wasn't a social media policy, it was a lot more difficult for the employer to put its case," Taylor says.
"The company had sought to rely on its induction training and on its handbook to ground the action against the employee, but in the view of the [then] FWA, in the electronic age it wasn't sufficient."
The Commission also noted the fact that many other large companies had managed to publish social media policies and acquaint their employees with them.
"Where you have a social networking policy and it says things like 'social networking is a permanent medium and once things go up onto the Internet they're there for people to see', it's much harder for an employee to plead ignorance about the way that these technology systems work," Taylor says.
"I don't think a social networking policy should operate in isolation," he adds.
"For example, here at Holding Redlich, we have a social networking policy which operates in conjunction with policies for technology use, sexual harassment and respect in the workplace.
"That policy governs comments that are made online via social networking and whether or not they're appropriate or inappropriate; release of confidential information of Holding Redlich; use of the intellectual property of Holding Redlich – even the release of information about clients."
Social media policies don't need to cover every possible misuse of the medium, he says.
"In writing any policy, it's very difficult to deal with every type of incident – it's easier to draft policies, and easier to enforce policies, if they're clear and easy to understand."
The level or nature of detail necessary will depend on the workplace.
Taking photographs in the workplace, for example, could warrant specific mention in some businesses but not others.
"It's a case-by-case approach... All businesses are very different, and their employees are very different as well. [The policy] needs to fit in with what the requirements are for the business, and what the objectives are for the business.
"If an employer does find themselves in the Fair Work Commission, it certainly helps if they can point to the fact the employee has been given a proper induction, has been referred to the policies, has been trained on the policies and then has breached those policies. That's going to put the employer in the best possible position."
Regular and timely reminders are also key. At Holding Redlich, for example, training on respect in the workplace is usually held in the lead-up to Christmas.
"Often it's sensible for employers to think about when they'll conduct their annual training reviews and to time it for these times of the year when there's probably a higher incidence of these types of events occurring," Taylor says.
To ensure that staff don't use social media inappropriately during this period, and that staff who do can be legally reprimanded, Taylor suggests the following to employers:
- implement policies covering the use of social media in the workplace and work situations – which may include the Christmas party, client functions, training events and conferences;
- have policies about posting work-related comments on social media – for example, posts that identify the employer or are made on behalf of the employer;
- communicate social media policies to employees, including by training and education;
- refer to appropriate policies in employee agreements; and
- ensure the business monitors social media comments about the organisation.
In the event of a potential breach, employers should consider whether there's a sufficient nexus between the conduct of the employee and the employment relationship.
"Whether that nexus arises depends on what the employee has posted, how they've posted it, and where they've posted it as well as what they've said."