Following Blog is an article written by Jessica Oldfield who is the Editor at Workplace Bulletin. The article was discovered by CA Managements HR Manager Danny Ramsawmy and he found that this may be beneficial to read as many do not know how your personal life can effect your work life.

Can you discipline an employee for out-of-hours social media use?

Wednesday, 15th January, 2014

By Jessica Oldfield

In today’s Workplace Bulletin:

  • Can you discipline an employee for out-of-hours social media use?

Dear Reader,

To begin today, I have a little story to tell you…

Joe Bloggs called in sick for work last Friday. Joe is Facebook friends with his supervisor, Terry. When Terry checked his newsfeed during his lunch break, he found the following post from Joe…

“Just meetin up with my mates for a few frothies! WooHoo. Let the weekend begin :P”

Obviously, Joe Bloggs wasn’t really sick.

Terry is within his rights to performance-manage Joe, or give him a warning, for pulling a ‘sickie’.

People are performance-managed every day for things like pulling sickies. But it often appears to be trickier when social media is involved. And usually, whether misconduct has been committed or not is not so clear cut as in Joe Bloggs’ case.

And what conduct on social media warrants discipline? Swear words, explicit photos… these are things that so many people have on their Facebook profile. And while a boss may not like it, does that mean that they are really allowed to discipline an employee for it?

To discipline or dismiss an employee for out-of-hours misconduct (whether it is on social media or not), you must be sure of two things:

  • the employee’s misconduct is connected with their employment in a clear and relevant way; and
  • the misconduct has caused damage (or has the potential to cause damage) to your business, e.g. loss of clients, damage to reputation, etc.

Below are a couple of real cases that demonstrate when you are able to discipline an employee for out-of-hours social media use…

Case law #1

In O’Keefe v The Good Guys (2011), The Good Guys fired Mr O’Keefe when it learned he made threatening and derogatory comments on his Facebook page about the business and one of his colleagues.

Mr O’Keefe lodged an unfair dismissal claim. He claimed his dismissal was unfair because he did not name his employer or the colleague he was referring to in his status update. Also, his Facebook privacy settings were set to the maximum possible and the reason he posted the comment was because he was frustrated about unresolved pay issues. However, the Mr O’Keefe admitted that he was friends with 11 of his co-workers on Facebook and that they would have been able to see his comments.

Fair Work Australia found his Facebook posts were a valid reason for his dismissal, even though he posted the comments on his home computer outside of work hours.

Case law #2

In Serafini v Holcim (Australia) Pty Ltd (2011), a truck driver photographed traffic accidents with his mobile telephone while driving a heavy vehicle, and he uploaded the photos and videos to YouTube and his own Facebook page entitled “Truck Pictures Old and New”. Fair Work Australia ruled that photographing truck accidents as he drove was a valid reason for dismissal.

What can you learn from these cases?

The above two cases and the example of Joe Bloggs are just a drop in the bucket when it comes to the kind of conduct employees may engage in via social media for which you might want to discipline them.

And, these are only the cases where the employer has been within their rights to discipline the employee. There are many more cases where the employer has taken disciplinary action, been taken to court, and lost.

That is why it’s so important to understand the law when it comes to social media and your business. You need to know your rights, your risks, and how best to mitigate those risks!

Jessica Oldfield
Workplace Bulletin