The perils of “after 5” social media use

The explosion of the use of so-called social media has employers and employees wondering where the line between work and play is drawn.

The courts and industrial tribunals have reasonably well defined the circumstances in which the behavior of an employee outside of the work environment may nevertheless justify termination of employment.

A large number of these cases centre on behaviour which has the potential to damage the reputation of the employer. For example, violent or destructive behavior by an employee while wearing a company uniform, may in the right circumstances be considered to reflect badly on the employer.

A number of the case examples have occurred in small and remote communities, where the employer and employee were both potentially well known to anyone who witnessed the relevant incident. Other cases have involved arguably unlawful behavior while the employee is strictly outside of working hours but is in accommodation which is provided by the employer to enable the employee to properly perform their duties.

But the use of online media adds a new dimension to the concept of when and whether an employee’s behavior should be considered private on one hand, or potentially very public and very damaging to the employer.
In a recent case, Fair Work Australia found that the termination of an employee who posted negative comments about her employer on Facebook was unfair. There were various considerations that bore on the decision, including the extent to which the negative comments identified the employer and the extent to which they were made available to anyone other than online “friends” of the employee. However, the real interest in the case lies in how it illustrates that the law still struggles with modern technology.

It is not hard to imagine an employee in a small workplace who has become disgruntled – in the recent case because the size of a Christmas bonus was not as large as expected. They record their emotions for posterity, potentially for hundreds if not thousands of people to see. It may even be the case that the employer is a “friend” or “contact”, who can directly access the employee’s comments, or at least knows someone, who can. The employer discovers the slight and perhaps understandably responds immediately in an emotive fashion. The employee’s employment is terminated.

In this relatively simple example, as has recently occurred in FWA, by the time the matter reaches a determinative hearing, the decisions are being made by a Judge or Commissioner who is removed from events by much more time and space than anybody imagined when they first vented their frustration on the world wide web. Suddenly the off-hand comment seems less offensive, or not really offensive at all, or just silly and ill considered. The employer’s immediate reaction that the goodwill of their business has been doomed by the errant employee isn’t, in the cold light of a week of expired cyber-time, a concern of any great moment.

What can employers learn from this? First and foremost, the instant gratification that technology has enabled the disgruntled employee to obtain from publishing a vitriolic comment, is not something that employers could or should imagine they will get by making a similarly hasty decision about the employee’s employment.

While the courts and tribunals recognise that employees cannot have open slather once the clock hits 5:00pm, both they and employers are struggling to balance the fact that such public denigration of an employer might have a significant impact on business; or it might not. And that’s the problem. The infiltration of technology means that no one can ever really know the answer to that. Employers need to ensure that their response to such an incident is calm and considered. The instinctive response is not always the best or most appropriate.

Of course, lengthy court action for defamation or misleading and deceptive conduct, to name just two possible legal bases for a claim, might be an option, but usually not the most attractive. At the same time courts and tribunals need to offer employers more objective guidelines which don’t so readily dismiss the acts of employees as just another “tweet” – everyone should be encouraged to think hard before they act.

Peter Vitale is a lawyer and adviser, who has more than 17 years experience advising employers about workplace and industrial relations law.