Australia: Employee dismissed over Facebook conduct – FWC

The Fair Work Commission has recently upheld the dismissal of a manager due to inappropriate content on his personal Facebook page. The decision is particularly interesting because the case involves an employee using social media in a personal capacity. Lisa Croxford, Special Counsel at Herbert Smith Freehills, discusses the implications of the judgment and explains when it is appropriate for companies to dismiss employees for their conduct outside the office. Lisa also provides some tips for companies to avoid a similar situation.

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Australia: Misusing social media – where can employers draw the line?

The Full Federal Court has handed down its decision in Linfox Australia Pty Ltd v Fair Work Commission. The Full Court upheld the decision of the Full Bench of the Fair Work Commission that Linfox unfairly dismissed a truck driver for posting offensive and discriminatory comments about two of his managers on his Facebook profile page. However, the Full Court’s decision is largely confined to appeal-related matters and does not greatly assist employers in assessing employee misuse of social media.

Employers can nevertheless take heart from recent Fair Work Commission (FWC) and Federal Circuit Court decisions which have adopted a more robust view of misuse of social media. These decisions reflect an acceptance that employees have an increasingly sophisticated understanding of social media which their workplace behaviour ought reflect.

Whilst each incident of social media misuse turns on its own facts, employers with comprehensive, well-communicated and up-to-date social media policies are best positioned to hold employees accountable for their actions and defend legal claims such as unfair dismissals. Continue reading

Australia: Trial by media: a continuing trend

  • The recent dismissal of James Ashby’s sexual harassment case against former Speaker Peter Slipper concludes yet another example of ‘trial by media’.
  • On 12 December 2012 the Federal Court handed down its decision dismissing Mr Ashby’s claim in full on the basis that it was an abuse of process, ordering Mr Ashby to pay Mr Slipper's costs.
  • This decision is one of a limited number in Australia where a claim of sexual harassment has been dismissed as abuse of process.
  • It gives heart that employers may have options to pursue where they suspect a disgruntled individual is pursuing litigation with the primary intent of causing reputational damage to a business or individual or for some other ulterior purpose. Continue reading

Social media: caution required when disciplining for Facebook comments

Employers should not assume that they have the right to restrict an employee's freedom to express views on social media where these concern personal beliefs and do not have a work-related context (such as being about the employer or work colleagues).

An employee's explanation of his views on gay marriage on his Facebook page was not work-related. It will not be assumed that comments are posted in a work-related context simply because the employee has identified his employer on his Facebook wall, or because he has work colleagues as Facebook friends, where the rest of the content is clearly personal and social. Personal postings on a social media website, which work colleagues could sign up to receive, are different from an email sent to work colleagues. The employer's equal opportunities policy prohibiting the causing of offence to colleagues was construed as applying only to work-related contexts.

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Australia: Anti-social media: Linfox Full Bench sets a framework for assessing misuse

 

  • The Full Bench of Fair Work Australia has dismissed Linfox’s appeal against the reinstatement of an employee who was terminated for misuse of social media.1
  • While this decision provides a limited framework for assessing the severity of social media misuse, it potentially raises the bar for employers seeking to terminate an employee for social media misuse. 
  • The decision – in particular the observation that an employee’s ignorance of the implications of social media misuse may be given less weight as more employers adopt social media policies – underscores our previously expressed view that a targeted, up-to-date and consistently applied policy is critically important when considering disciplinary action against employees for inappropriate use of social media.  Continue reading