Page 69 - Print21 March-April 2020

Business
Social media
workplace. It should explain
the required standards and the consequences for a breach. Most importantly, all employees should
be made aware of the policy and its contents in clear and simple language for the policy to be effective.
Recent cases provide the following guidelines on the use of social media: 1. Derogatory, discriminatory or
offensive comments made about your co-workers or workplace can provide a valid reason for the termination of employment. This is not always the case, and every matter is determined on its own facts. The Fair Work Commission will consider whether the termination is harsh, unjust or unreasonable.
2. Even if an employee wins
the unfair dismissal battle,
it is unlikely that the Fair
Work Commission will order reinstatement, because the relationship between the employee and the employer will be irreparably damaged by the comments made.
3. Posting comments anonymously is not a safe option. There is a risk that the identity of person posting the online comment may be revealed. Where the identity is discovered, the comments are bound to damage the integrity and good reputation of the employer or workplace. The High Court of Australia has confirmed that comments that are overly critical of an employer, or its policies, damage the reputation of the employer. Damage to the reputation of the employer may enable the employer to a make claim for compensation.
4. Unlike other countries, there is
no personal right to free speech
in Australia. While an employee is entitled to his/her opinion, they need to consider their statutory and contractual obligations before posting online. There are laws that may limit a person’s right to free speech. Similarly, workplace policies may determine what conduct is acceptable both during and after working hours.
5. The simple rule for employees
to keep in mind before posting
a comment online is to think about how their colleague, boss or employer will react if they see the comment. 21
For more information contact Wal at Fox & Staniland Lawyers, Gordon, NSW. Phone: 02 9440 1202
Email: wal@foxstaniland.com.au
and the workplace
Lawyer Wal Abramowicz says employers need to have a clear policy on social media for their employees, while the employees need to be mindful of the potential repercussions of what they are saying.
With the rise of social media platforms, such as Facebook, Instagram, and Twitter, the line between a private conversation and a public communication has become blurred. Instead of having a private conversation around the water- cooler in the workplace, or at home, it has become the norm for people to express their views by posting online comments.
There have been many cases
where people have been sacked for comments posted to various social media platforms. Cricket Australia sacked an employee after she made comments on Twitter criticising a policy of the Tasmanian government. Israel Folau was sacked after he made comments on Instagram. A public servant was sacked for publishing thousands of tweets criticising the government and its policies. A lawyer was sacked for making comments
in the media about a client of the firm the lawyer worked for. It was not the fact that the comments were made, but rather it was the breach of a workplace policy that led to their dismissal.
As a social media user, you may be asking “What about freedom of speech?” Or you may be thinking that if you post anonymously there will be no way to trace the comment back to you, or to identify you or the person or workplace that you are making comments about.
Most workplaces have policies about an employee’s use of social media. The policies extend to conduct that occurs during working hours and conduct that occurs outside the workplace or regular
“There is no personal right to free speech in Australia. They need to consider their obligations before posting online”
working hours. A breach of those policies may lead to disciplinary action being taken against you, possibly leading to termination of your employment.
If a workplace does not have a policy on social media, it should. The policy needs to be clear and customised for the particular
Wal Abramowicz: If a workplace does not
have a social media policy, it should instigate one
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