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Tag Archives: law of social media

Print Article15 August 2012 7:23am

 Industrial tribunals have responded well to the challenges posed by social media misconduct, and employers shouldn’t be afraid to take action in appropriate cases, says barrister Elizabeth Raper.

In grappling with the topic, courts have been “making sure they undertake a balanced exercise in terms of the need to sanction outside-work conduct, against the legitimate interests of those that are responsible for the conduct when it falls in the workplace, for which employers can be vicariously liable”, Raper told the 20th Labour Law Conference in Sydney this week.

The main issue that has been brought into “stark relief” from Facebook cases in the industrial arena is the extent to which conduct outside of work can be the subject of sanction by an employer, she says. “So related to this issue is whether the conduct is private, and whether it’s outside, therefore, the purview of employers.”

She says social-media-related misconduct cases tend to fall into three categories:

  • crossing of “professional boundaries” via social media;
  • social media misconduct outside of work – for example making disparaging comments online, or harassing or intimidating co-workers; and
  • social media as a contemporaneous record of misconduct – for example where an employee claims to be sick, but posts photos from the party they’re attending, or posts evidence online of misconduct that occurred in the workplace.

According to Raper, decisions to date reveal a similar evolution to that seen with sexual harassment cases in the 1980s, and email pornography cases in the 1990s. In all three areas, “courts have gained over time a greater understanding of the technology, and then have considered the misconduct in the light of the wider obligations of employers to protect their workforces”.

Further, as with these earlier cases, “there’s a lesson to be learned from all parties in terms of employers understanding what their rights and obligations are, and also employees working out, ‘When does the conduct overstep the mark and can be the subject of sanction?'”

Out-of-hours misconduct

Employers struggle with the issue of sanctioning employees for misconduct outside of work, but there are some instructive decisions to guide their actions, Raper says.

The 1996 Federal Court decision in McManus v Scott-Charlton, for example, shows that “When considering the question of obeying lawful direction and the extent to which an employer can give a direction or sanction an employee for conduct outside of work, it was said rightly that when you’re considering the conduct, it’s about matters affecting work”, she says.

Tribunals expect employers to provide “some legitimate level of supervision of the relationship of employees inter se… in order to protect the interests of an employer from adverse effects that can flow from employee misconduct”, she says.

“So the cases in terms of dealing with misconduct generally reveal that derogatory comments on Facebook will give rise to sanction.”

In determining whether sanctions are fair and warranted, an independent umpire will specifically consider “the extent to which the conduct has affected the employer’s business, and whether the relationship of trust and confidence has been compromised”, Raper notes.

In the case of O’Keefe v Good Guys, it was legitimate for an employer to sack a worker who said intimidating and damaging things about a colleague on Facebook from his home, she points out.

“In that decision Deputy President Swan quite rightly said, ‘Let’s see what the employee handbook says about being courteous and respectful. Let’s deal with the issues about how an employee shouldn’t behave. [And] putting aside whether there was a policy in place that dealt with Facebook or not, or email, or inappropriate outside-work conduct… let’s deal with common sense that would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner which occurred’.

“What the decisions reveal is that conduct on online socialising sites, just like conduct outside work, will be dealt with in the way that the tribunals have always dealt with misconduct.”

Social media “not a private conversation at the pub”

Raper says she is often asked how “making derogatory comments on Facebook is any different from having a private conversation down at the pub on a Friday night, when you’re just having a whinge”.

“The difference is this: there’s a wider audience; it can be on-sent to other people and out of context; it’s often communicated to work colleagues; there’s a permanent record; and it can be republished time and time again. By virtue of those things it’s different from the old conversations that we used to deal with.”