Facebook & employers: the double edged sword

There is little doubt Facebook is a double-edge sword for employers. While many companies are using the site to communicate with customers and build sales, it has also become clear the world’s leading social media site is a place where anything can and will be said about brands.

However, a line has been drawn in the sand against the use of Facebook by employees to share adverse comments about their employer right around the world.

One of the first reported cases came in March 2009 when Dan Leone, a stadium operations worker with the US football team the Philadelphia Eagles, was fired for posting an abusive message on Facebook about a player signing with another team.

Australia had its first brush with Facebook abuse in the case of the ‘Facebook Six’ – prison officers who criticised senior officers on their Facebook page (Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director General of the Department of Justice and Attorney General [2010] NSWIRComm 36, 23 March 2010).

In a fan group called “Suggestions to help Big RON save a few clams”, the group of officers criticised plans to privatise prisons and said there could be other ways for the corrective services commissioner, Ron Woodham, to save money.

The incident was investigated by NSW former police commissioner Ken Moroney to determine if misconduct had occurred, but the ‘Facebook Six’ avoided termination because the investigating officer was not an employee under the Public Sector Employment and Management Act 2002.

They were lucky!

Only a few days ago the case of Fitzgerald v Smith [2010] FWA 7358 (24 September 2010) again raised the issue of Facebook abuse. In this case, the employee posted comments on Facebook complaining about inadequate remuneration. The criticism on Facebook was general, perhaps foolish, but it did not specify ‘the employer’. It was sarcastic rather than offensive. The employer didn’t respond immediately when she became aware of the Facebook post.

Commissioner Bissett was careful to note the following in Fitzgerald’s case:

• The comments on Facebook were not directed at a named employer;
• There was little evidence about how long the post was up on Facebook;
• The Facebook page was private and only friends could read the comment;
• It was not personally critical of the employer;
• It was not posted during working hours although visible during such hours.

As a result, it was not a valid reason for termination.

What are the lessons for employers?

1. Have a policy and procedure in place that makes it clear that employees must not publically, through social media or otherwise, be critical of the business or its employer.

2. Induct employees into the policy and procedure and regularly train them.

3. If an allegation is made, always immediately investigate and respond.

4. In the investigation phase, carefully collect information as to the content of the Facebook posting, when it was posted and how long it remained as a post.

5. Follow the usual disciplinary process providing procedural fairness.

Had the ‘Facebook Six’ been investigated appropriately, their criticisms may well have justified termination. For employers – this is not an issue you can ignore. It is important you act now to develop policies and procedures and undertake the relevant induction and training.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.