Social savvy – Our 2017 wrap-up of social media in the workplace

There is no doubt that social media has changed workplace relations. It has impacted the employment relationship and the relationships employees have with each other.

Throughout 2017 the courts, the tribunals and employers more generally have continued to iron out the wrinkles in how they deal with social media in the workplace.

In this blog, we look back on some of the more interesting social media cases from the year that was 2017.

The employee in competition with her employer – Baird v June Austen T/A Revitalise Face & Body Therapies; Lift Skin Body Beauty [2017] FWC 4256

In February 2017, a part-time beauty therapist was summarily dismissed from her employment after starting a business in competition with her employer and posting about it on Facebook.

A client brought the Facebook promotion to the employer’s attention who then went on to investigate further.  The employer found that the beauty therapist was operating a competing service in a nearby town from which the employer drew customers.

After her dismissal, the beauty therapist claimed that she was unfairly dismissed but the FWC did not agree. It found that the employee’s conduct in starting a business in competition with her employer was serious misconduct justifying summary dismissal.

The “sickie” sacking – Di Gioacchino v Kmercial Contractors Pty Ltd [2017] FWC 5289

In May 2017, a roof plumbing employee was sacked after several of his co-workers thought they spotted him working for a competitor while on sick leave and discovered an Instagram post with three photos, two of which they claimed were him working on his days off.

The employee denied that his co-workers had seen him working for a competitor or that the poor-quality photos in the Instagram post were of him.

Following his sacking, the employee lodged an unfair dismissal application with the Fair Work Commission (FWC) claiming that there was no basis for his dismissal.

The FWC agreed, saying that the pictures in the Instagram post were not clear and that the evidence of the co-workers was not conclusive. The FWC found that there was no valid reason for the dismissal and awarded the employee $4,219.38 in compensation.

Facebook musings alleged to have caused a psych injury – Robinson v Lorna Jane Pty Ltd [2017] QDC 266

In November 2017, the District Court of Queensland decided a case in which a former employee of active-wear brand Lorna Jane claimed that she suffered a psychiatric injury as the result of two Facebook posts authored by her manager.

The employee claimed that the manager’s posts, made in September and November 2012, were directed towards her. The employee was not named in the posts and didn’t come to know about them until sometime after they were published.  

The posts said:

“I have discovered a new name for the people I despise – I call them ‘Generators’ purely because they fill their days generating more problems for me to deal with. Generators are similar to mutants – people who are genuine oxygen thieves.”
“What a day! It’s difficult to soar with the eagles when your [sic] surrounded by turkeys. Is it too late to pursue a different career?”

On becoming aware of the posts, Lorna Jane immediately asked the manager to remove them. Lorna Jane also adjusted its reporting lines so that the employee no longer reported to the manager and commenced a disciplinary process with the manager.

In relation to the employee’s psychiatric injury claim, Lorna Jane denied that it was liable for any injury the employee suffered as a result of the posts or working with the manager. It maintained that the manager had done nothing to cause the employee any psychiatric injury.

The Court agreed and found that the employee was unreliable and had “credibility problems.” Lorna Jane was found neither liable nor vicariously liable for the employee’s psychiatric injury, due partly to its swift action following the discovery of the Facebook posts.

Facebook friending used as evidence of friendship outside work – Higgins v Coles Supermarkets Australia T/A Coles [2017] FWC 6137

In a widely reported decision handed down in November 2017, the FWC found that the dismissal of a Coles employee, who sent his manager explicit images in text messages, was not harsh, unjust or unreasonable.

The employee claimed that his dismissal was unfair, in part, because his manager was a personal friend and they exchanged texts and communicated outside of work frequently.

In support of the position that their friendship extended beyond a working relationship, the employee submitted that his manager had added him as a friend on Facebook and Xbox.

The FWC found that the employee and the manager did have a personal friendship and it was more likely than not that the manager thought at least the first explicit message he received was funny.

In any event, the FWC found the employee’s actions were serious misconduct and agreed with Coles that the employee had demonstrated an inability to comply with Coles’ core values. The FWC dismissed the employee’s unfair dismissal application.  

The viral “bird” to Trump

In November 2017, a photographer travelling with the motorcade of US President Donald Trump captured the moment a woman on a bicycle gave President Trump’s motorcade the middle-finger as it passed by her.

The picture garnered wide media attention and quickly spread across social media. The woman featured in the image was pictured from behind and was not easily identifiable, but she proudly took ownership of her gesture of defiance and made it her Facebook and Twitter profile pictures.

In an attempt to be open with her employer, the cyclist informed the HR team about the media attention, which lead to her eventual demise as an employee.

The employer’s response was to terminate the cyclist’s employment on the basis that her use of the image as her profile pictures violated its social media policy and had the potential to impact on its relationship with the US Federal Government, with which it regularly contracted.

Reports in the media suggest that the cyclist is still considering whether to take legal action against her former employer for the dismissal.

Lessons from 2017

These cases demonstrate the need for employers to continue to remind employees about the appropriate uses of social media into 2018 and beyond.

Employees still make the mistake of thinking that their social media posts, friendships and profile pictures are private. No matter how high the privacy settings – social media simply is not private. Any posts, pictures, comments or other actions online can be used as evidence upon which decisions relating to the employment relationship can be made. The ultimate take home lesson? – if you wouldn’t say it or show it to your boss in a meeting (or your grandmother), don’t post it online. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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