Seminar: Social media in the workplace - 30 November 2016
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Russell Kennedy Workplace Relations Seminar presentation by Anthony Massaro and Caitlin Walsh.
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Social media and the workplace
Anthony Massaro Caitlin Walsh
Principal Associate
30 November 2016
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Seminar: Social media in the workplace - 30 November 2016
- 1. [Insert image here to match your presentation – contact Bridget in BD to obtain images] Social media and the workplace Anthony Massaro Caitlin Walsh Principal Associate 30 November 2016 ##Insert FileSite Doc ID
- 2. > Social media cannot not be ignored > It can be a tremendous way to promote your business and engage with the market > It can be a tremendous source of reputational and financial risk Social media 2
- 3. Starr v Department of Human Services > Starr identified himself as a Centrelink officer in online discussion boards > Made a number of posts criticising Centrelink and the Government, including: > “ESL means something totally different for me here at work – it’s an appointment for the spastics and junkies. Always a joy.” How bad can it really be? 3
- 4. > Workplace issues > Bullying, sexual harassment > Poaching of clients > Poaching or compromising of staff > Disclosure of confidential information > Breach of privacy > Defamation What else can go wrong? 4
- 5. > Too many benefits > Staff engagement > Customer engagement > Can prevent use of social media at work (but do you want to?) > Can’t prevent use of social media at home > Need to embrace the benefits, and manage the risks You can’t ignore it 5
- 7. Prohibiting bad behaviour is only one element > What behaviours do you want to encourage? > Develop a strategy > Policy: > to reflect your strategy > to minimise risks > Training > to support your policy and strategy How can you manage the risks? 7
- 8. > Proactive elements > How you want staff to engage with social media > What you want to achieve > Risk management elements > Identify inappropriate behaviour > Identify consequences > Monitoring of work IT use > Downloading of programs and images An effective social media policy 8
- 9. Linfox Australia Pty Ltd v Stutsel > Employee posted inappropriate comments on Facebook > No social media policy in place > Employee claimed ignorance > Dismissal found to be unfair Dismissal without a policy 9
- 10. Pearson v Linfox Australia Pty Ltd > Employee refused to sign social media policy > “…they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech…” > Written warning, relied upon as part of the reason to dismiss > Dismissal upheld …and with a policy 10
- 11. > Training regarding policy > Training in using the social media which you encourage > Eg: LinkedIn – basic skills > Emphasise > Courtesy > Accountability > Permanence Training 11
- 12. Disciplining employees for misconduct on social media
- 13. Disciplinary processes 13 > You can use social media to investigate – but be conscious of privacy > You can act on after hours conduct – but make sure there is a sufficient connection > You can discipline employees for conduct in breach of a social media policy – but don’t overreact > Remember procedural fairness obligations
- 14. Jurecek v Director, Transport Safety Victoria > Employer reviewed employee’s Facebook page as part of misconduct investigation > Employee accused employer of breach of privacy > No breach > Employer can review social media for investigation > Ensure collection lawful, reasonable (no hacking!) and for legitimate purpose Investigations and privacy 14
- 15. > Needs to be a relevant connection between conduct and employment relationship > Does the conduct damage: > the employment relationship? > relationships within the workplace? > the employer’s interests? > Is the conduct incompatible with duties? Conduct outside working hours 15
- 16. Starr v Department of Human Services > Comments were all made outside work hours > But with a strong connection to employment > Valid reason to dismiss based on seriousness and public nature of comments > BUT dismissal harsh > Employee reinstated with no compensation > Even where sufficient connection, ensure termination proportionate Conduct outside working hours 16
- 17. Singh v Aerocare Flight Support Pty Ltd > Baggage/freight handler at airport > Facebook posts appearing to support ISIS > No valid reason for dismissal > Dismissal harsh, unjust, unreasonable > Employee awarded $4,800 > Don’t take posts on face value – investigate properly Knee-jerk reactions 17
- 18. Remmert v Broken Hill Operations > Bullying comments on Facebook about another employee outside work hours > Valid reason for dismissal > BUT dismissal harsh and unreasonable > Employee awarded $28,471 compensation > Ensure employee has opportunity to respond – procedural fairness > Be careful what you put in writing Don’t forget procedural fairness 18
- 19. Social media after employment ends
- 20. Social media post-employment 20 > Confidentiality obligations > Defamation > Restraints – Planet Fitness
- 21. Key messages
- 22. > Check your policy > Train your staff > Encourage staff to use social media responsibly > Make sure that they understand that bad behaviour on social media can get you fired Key messages 22
- 23. Contact details 23 Anthony Massaro Caitlin Walsh Principal Associate Phone 9609 1501 Phone 8640 2326 Email amassaro@rk.com.au Email cwalsh@rk.com.au
- 24. Level 12, 469 La Trobe Street, Melbourne, VIC 3000 P: +61 3 9609 1555 Level 8, 28 University Avenue, Canberra, ACT 2601 P: +61 2 6171 9900 Liability limited by a scheme approved under Professional Standards Legislation
Hinweis der Redaktion
- And that means that you need to have steps in place to govern that risk So let’s talk a bit more about those risks
- Biggest risk is reputational damage Decision from March 2016 Frequently participated in conversations on online discussions (through Whirlpool and Sportal) Criticised staffing cuts Described Centrelink’s processing time as “utterly disgraceful” Criticised 2014 Federal budget Said he was embarrassed to work there. Capped it off by referring to Centerlink clients as spastics and junkies An appalling look for Centrelink
- There are no limits to human creativity! Conduct occurring on social media can have a direct effect on the workplace Employer can be liable for the workplace consequences Damages in sexual harassment, bullying workcover claims increasing SM can also be the basis of bullying claims through the FWC. Eg Bowker Facebook comments made after hours, away from the workplace Viewed at work by an employee Found to be “bullying in the workplace” Rep damage – as I’ve just discussed, people make thoughtless comments which can come to represent your organisation. Poaching of clients – SM makes it easier for employees to form strong personal connections with clients. That is a fantastic thing, right up until they leave. An innocent LinkedIn update can act as an advertisement to all of your clients – eg Planet Fitness case Poaching of staff – Recruiters cruise LinkedIn. Jason and Fiona recruiting Carla through skype Compromising staff – request to disclose trade secrets
- We can’t just wait for it to go away If use of social media is not the norm for your current workforce, bear in mind that a much higher proportion of people entering the workforce now are social media users They will want to use it at work for work They will want to use it at work for other stuff They will use it at home, no matter what If they can’t use social media at work, it will be an issue for staff engagement. Also, as clients and customers increasingly become more involved in/dependent on SM… I would only suggest preventing use of social media at work if it is necessary to avoid some specific risk eg, no use while driving. Tram driver case from a few years back eg, health and aged care – there may be times during the working day when it would create a risk to residents or care recipients – no use on shift except during breaks.
- Need to determine your strategy on how you want to benefit from social media How you want your staff to use social media? Which social media do you want them to use? What are you trying to achieve How will you measure that achievement? You can’t do your policy until you have your strategy. Policy and strategy need to be backed up by training.
- Needs to contain your dos and don’ts * Be courteous * Promote the employer’s interests Don’t abuse people or use foul language Policy can set out inappropriate behaviour in detail, or refer back to other workplace policies and explain that conduct on social media can be the basis for disciplinary action Eg - Don’t use racist or homophobic slurs Alternative – don’t engage in any conduct which would breach our equal opportunity policy Make it clear that misconduct on social media can lead to dismissal. Should also be a policy covering IT use etc. By putting these steps in place, you reduce the risk rep damage, bullying, harassment
- Example of what happens if there is no policy in place – 2012 case. Employee posted some pretty bad things on Facebook, including calling his muslim manager a “bacon hater”, being part of a conversation with other employees where it was stated that his female manager provided sexual favours in exchange for industrial peace, and making violent comments about a bear ripping off the head of both managers. Linfox had no social media policy. Without a policy in place, Commission was able to downplay seriousness of comments. Focus moved to the employee’s lack of understanding No idea what he was doing, didn’t understand how FB worked Didn’t understand that everyone could see the posts Did not understand the posts were offensive Did not understand that you could get in trouble for stuff on FB Put it like that, it doesn’t sound very fair… Commission found – no valid reason for termination, and dismissal was harsh.
- A few months after that decision… Commission found that it was lawful and reasonable for Linfox to request the policy acknowledgement to be signed Some quotes: “establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business” “Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only.” “it is difficult to see how a social media policy designed to protect an employer’s reputation and the security of the business could operate in an “at work” context only. “ What we learn from these cases: you need to have a policy to be able to discipline employees for conduct on social media AND it is ok to implement one, and to require employees to comply with it.
- Must be backed up by training Make sure that everyone is aware of the policy, and what it means You don’t want anyone saying “Oh, Facebook isn’t work, I didn’t realise it would matter.” Equally, you need training to ensure that everyone knows how to use the media which you are allowing/encouraging Training on privacy settings – you don’t want people saying things which they think are private… eg Stutsel Training to ensure that people understand how their personal profile relates to the organisation’s profile. Training should make it clear that comments on social media are just the same as comments made to a person’s face, with a million or so eavesdroppers listening in, many of whom are reporting their interpretation of the conversation to perhaps a billion other people. For years.
- So, you have your systems in place, but an employee goes ahead and posts something awful on online. What can you do? I will be talking today about disciplining employees for misconduct on social media, including: Using social media to investigate employee conduct, how not to fall foul of the privacy regime When you can and can’t act on after hours conduct The dangers of overreacting I’ll also talk about what you can do about social media issues after an employee leaves.
- First – we’ll look at how you get the information. It is easy to get information off social media – generally, it is all a quick google away. Sometimes, you might receive print outs or screenshots from other employees. Or even anonymously slipped under the door. It is very important to be aware – an employee’s social media activity can be covered by privacy legislation, which means you have obligations about how it is COLLECTED USED Recently, this issue was considered by the Supreme Court of Victoria. An employee of Transport Safety Victoria (Lara) had posted a series of rants about Adrian Bayley online, and started saying abusive things to one of her colleagues who had shared a story about Jill Meagher’s death online. This escalated into full blown bullying – where Lara was calling Paula a “snitch” and saying she was “too busy sucking up”. One of the tirades ended with “Go on, print this off, report it to HR!” So, that’s what Paula did. She took it to HR, who then viewed the posts themselves on Facebook. The Employer commenced a bullying investigation, which ultimately led to the employee being issued with a final warning. The employee then accused her employer of a breach of the privacy principles under the Victorian privacy legislation. Now – this only applies if you are a public sector employer. However, generally speaking, the same principles will apply under the Commonwealth Act. The Court said yes – despite the fact that the employee posted all this information online for the world to see, it was personal information covered by the legislation. This means that the employer had to have a: LEGITIMATE PURPOSE FOR COLLECTING the information – necessary for the employer’s functions and activities The way you collect the information cannot be “unreasonably intrusive” NOTIFY the employee of the collection USE the information for the primary purpose for which it was collected (another legitimate purpose permitted by the legislation) The Court found that the purpose for collection was fine – the employer was collecting it for a bullying investigation, which it needed to conduct to meet its health and safety obligations. The information was all easily accessible online, and able to be viewed by all of Lara’s friends. So, the collection was not “unreasonably intrusive”. The employer didn’t notify the employee straight away that it had the information, or try and collect it from her personally. However, this was ok in the circumstances, because they recognised that trying to collect the information directly from the employee, or notifying her straight away could have compromised the investigation. The employee could have attempted to delete the posts. So, it was fine for the employer to only put the information to the employee once it required a response from her. Finally, the information was used for a legitimate purpose – furthering the investigation and disciplinary processes. So – you can do it collect and use information for an investigation, but ensure you collect it in a lawful and reasonable way. Transport Safety Victoria found that an employee’s Facebook posts were ‘personal information’ covered by our Victorian privacy legislation. Now, this legislation only applies if you are a Victorian public sector employer. Many of you here will only be covered by Commonwealth privacy legislation. Employee’s personal information that you collect and use for their employment is exempt from that Act. Employee posted abusive comments on her colleague’s facebook wall. Employer viewed these comments by accessing her Facebook friend’s pages (who could view the posts). Employee subsequently disciplined, and she became aware that employer had accessed her FB page. Accused employer of breach of privacy legislation. Court found: Employer entitled to view FB page as part of legitimate workplace investigation Here, viewing didn’t involve ‘hacking’ the page. Employer’s use of the information it collected was legitimate. No breach of the privacy act. Didn’t have to immediately notify employee of breach – this could have jeopardised the investigation (employee would have deleted). BUT do need to notify once information obtained (should be doing this anyway if you intend to rely on it – give the employee an opportunity to respond). Careful – make sure means of collection is lawful. No hacking! Make sure use is for legitimate purpose.
- So – you’ve got the information, but it looks like it was published on the employee’s personal account, outside of work. CAN YOU DO ANYTHING ABOUT IT? The general position is that you can’t control every aspect of your employee’s lives – it would be exhausting even if you wanted to! In fact, courts say that it is only in “exceptional circumstances” that they will allow employers to step in and control an employee’s personal time. So, when do you know you have one of those ‘exceptional circumstances’? The test is – whether there is a RELEVANT CONNECTION BETWEEN CONDUCT AND EMPLOYMENT RELATIONSHIP Court looks at whether there is a connection between the conduct and the employment relationship. Number of factors will point to there being a connection: Damage to employment relationship, workplace relationships or employer’s interests? Incompatible with duties. Always will come down to the facts. There was an interesting case recently that illustrates how this applies in practice. HR Manager at a car dealership was friends with her boss’s wife. The wife separated from the boss after she discovered he had been cheating on her. The HR manager sought to comfort her friend – sent a series of private messages on Facebook. Essentially they said – don’t worry, everyone here thinks he is a tosser too. Everyone has been telling me they can’t wait to fill out the employee engagement survey, so they can vent about how awful he is. The boss found these messages, and dismissed the HR manager’s employment for two reasons – she clearly had such a low opinion of him they couldn’t work together anymore. Also, she had breached confidentiality by passing on information about the employee engagement survey and staff complaints. The court was not very sympathetic with the boss. The message was private, and between friends. The boss had actually hacked into his wife’s Facebook page without her permission, to access the messages. The confidentiality breaches were relatively minor Just because an employee has a low opinion of you doesn’t mean you can dismiss them. There wasn’t significant enough damage to the employment relationship. The HR Manager’s claim for unfair dismissal was successful.
- The case of Starr that Anthony mentioned earlier also involved an employee with a low opinion of their employer. However, here the commission found that there was a sufficient connection. You’ll remember his comments were very serious and very public. This was not private venting to a friend – this was actively engaging in critical discussion online. In that case, there was a valid reason for dismissal. Despite being made after hours, the comments had a sufficient connection to the employment relationship. ULTIMATELY, the Commission found that the dismissal was harsh. You still need to be careful – even where there is a valid reason, make sure that dismissal is the right disciplinary option. In Starr’s case, the Commission found that dismissal was disproportionate response. Long service with unblemished record Prospects of finding other employment low (had worked for same employer since 19 yrs old) Genuine remorse No evidence of damage to employer’s reputation, and not deliberate attempt to undermine Some findings about conduct not justified The Commission ordered that Starr be reinstated and that no compensation be afforded given the sufficient financial loss as representative of a suitable sanction. The Department have since lodged an appeal challenging the decision of the Commission. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FWC/2016/1460.html?stem=0&synonyms=0&query=starr%20and%20centrelink
- Starr’s case illustrates how important it is to think carefully about all the circumstances of the case before acting. Misconduct involving social media often gifts you clear, documented evidence. It’s not just ‘he said she said’, you can see it all laid out before you. It can be very tempting to act swiftly. But rushing things is likley to land you in trouble. There was an extraordinary case recently, which received a fair bit of media attention. A baggage handler at Brisbane Airport was found posting comments in support of ISIS online. He had shared their promotional videos and commented “We all support ISIS”. Management found out about the posts, and he was stood down with pay while they investigated. Singh claimed the posts were sarcastic – he was actually a supporter of far right, anti-ISIS groups such as Reclaim Australia. He was a member of these groups on Facebook. The investigation conducted by the employer was not thorough, they took the posts at face value. and they did not look at his Facebook page thoroughly, which would have demonstrated that the posts were a joke. Commission said that if Singh had been an ISIS supporter, the posts would have warranted dismissal. However, in the circumstances, they were just “ridiculous”, unfunny jokes. Dismissal was not appropriate. Singh did not seek reinstatement. Aerocare were ordered to pay $4,800. (Compensation reduced by 40% due to his misconduct). Now, I think there could have been a different outcome in this case. If aerocare had investigated the page properly and discovered that the posts were a joke, they could have put this to the employee, and made their decision on the basis that a person who jokes about terrorism is not fit to work. Particularly given there are Commonwealth regulations that make it an offence to make a joke about aviation security. Depending on the Commissioner, this could have changed the outcome of the case. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FWC/2016/6186.html?stem=0&synonyms=0&query=singh%20and%20aerocare When investigating, make sure you understand the medium you are looking at. Recently, I had a call from a client about an employee with a history of using up every last sick day every year – and then some. His supervisor had always been a bit suspicious about the timing of the leave – always mondays and fridays, looked a bit like he might be taking them for a ride. Recently, he had taken sick leave on his birthday,. While on leave, he was tagged in a post in Queensland. My client called up and was saying – think we’ve got him, he’s taking a holiday, what can we do. We looked at the post more closely.
- Now – being thorough doesn’t stop at the investigation. You also need to ensure you follow procedural fairness, and put all the reasons for termination to the employee. In the case of Remmert and Broken Hill Operations, and employee had made fairly abusive bullying comments on Facebook after hours. These comments, and other bullying behaviour was put the the employee for his response, and his employment was ultimately terminated. During the unfair dismissal case, the employer had to produce an HR summary. This summary set out the reasons why management should dismiss the employee. One of the reasons was a confidential complaint they had received about the employee’s behaviour. This complaint was not put to Remmert, for fear of revealing the identity of the complainant. However, this was ultimately the employer’s downfall. The summary revealed it had been part of the reasons for termination, yet Remmert had never had an opportunity to respond to it. Ultimately, and despite his appalling behaviour, Remmert was awarded nearly $30,000. So – please make sure employees are given an opportunity to respond. But also, be careful what you put in writing. If you can’t put it to the employee, and sometimes there is a good reason you can’t, don’t put it in your HR summary.
- So you’ve managed to dismiss your employee, and done it fairly. The social media fun doesn’t stop there. In the past, it was harder to know what your ex-employees were up to after they left. Unless their ranting and raving made the papers, you may not have heard anything more. However, times have changed. We are regularly getting calls about naughty things employees are doing on social media AFTER their employment ends. I just want to talk very briefly about three types of claims, that could help you out if an ex-employee goes rogue online.
- FIRST - Employees have duties under the common law and Corporations Act not to misuse their employer’s information to gain an advantage for themselves, or cause detriment to the old employer. Breaches of this obligation can attract penalties of up to $200,000 SECOND - employees, like the rest of us, must not defame individuals. So, employees publishing a rant about their old boss online, could potentially give rise to a defamation claim. (has to be published, have to be able to identify the individual and it has to be defamatory, which means that it has to lower the reputation of the victim in the eyes of a reasonable member of the public). Defence of truth (among other things). THIRD – you can include post-employment restraint in an employee’s contract. More and more, we are seeing ex-employees using social media to set up their own businesses, lure away clients, or contact their old colleagues to entice them away. This can be very damaging to your organisation. Post-employment restraints can help you control what an employee does after their employment. For example, there was a case that involved a personal trainer who left her gym. After leaving, she started advertising to her old clients on facebook – come to my new gym and you’ll get a discount! Her contract with the old gym included a post-employment restraint that prevented her from “soliciting” clients for 3 months after her engagement ended. The Court said these Facebook posts were a form of “soliciting”, and ordered her to take them down. Not all restraints will cover social media, and many restraints that we see are not enforceable at all. So, if this is a risk for your business, make sure you review your contracts, and your restraints.
- So I’ve talked about the doom and gloom, what happens when social media goes wrong. But really – our key message is prevention is better than a cure.