In a very interesting (and perhaps landmark case), Fair Work Australia recently overturned an employee’s dismissal because the organisation didn’t have a social media policy.
The story (source):
The truck driver of 22 years’ unblemished service was sacked in May 2011, after one of his managers accessed the driver’s Facebook profile to find a range of offensive comments directed towards her and the company’s Transport Manager.
The manager gave evidence that she clicked on the driver’s profile while after seeing his name on a mutual Facebook friend’s page and read comments which directly referenced her by name, which she found “revolting and frightening”.
She informed the Transport Manager, who is a Muslim and was also singled out on the driver’s Facebook page as a “bacon hater”, and together they informed the Manager of Workplace Relations about the comments.
An investigation was conducted and the driver’s employment was terminated on the basis that the comments amounted to discrimination of a sexual and racial nature.
The truck driver said his wife and daughter, who set up his Facebook page on his behalf, had told him the profile had full privacy settings and wasn’t intended to be read by anyone who wasn’t a Facebook friend.
He also argued the only sexually discriminatory comments written on the page were posted by a friend, and his comments about the Transport Manager were not intended to be racially derogatory.
As part of the judgement, Fair Work Australia Commissioner Michael Roberts found that:
The chains of comments have very much the favour of a group of friends letting off steam and trying to outdo one another in being outrageous. Indeed it has much of the favour of a conversation in a pub or cafe, although conducted in an electronic format. The fact that some of the material is not complimentary towards (the company’s) managers is unsurprising. This always has been, and always will be the fate of those holding managerial positions.
But certainly the most interesting part of the findings was that Commissioner Roberts considered it inappropriate for the employer to not have a social media policy, and instead relied on its induction training and company handbook (e.g. code of conduct) to terminate the employee. His comment:
In the current electronic age, this is not sufficient and many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies.
The company in question still did not have a policy in place 4 months after the dismissal of the employee.
This case provides a great business case for businesses and organisations to generate social media policy for employees in order to clarify both sides’ expectations of conduct on social media.
Want more information? Download our free Social Media Strategy & Policy 101 briefing paper.