Mastering the Social Media Minefield

Why is this an issue right now?

Social media has become an integral part of our lives, both personally and professionally. With an estimated 21.3 million Australians expected to be active on social media in 2023 (representing over 80% of the population and spending more than two hours daily), employers can no longer afford to overlook the impact of social media use by their employees.

It's essential to recognise that employees' social media activities can pose risks to their employers' brand reputation. Inappropriate comments, abusive behaviour, sexism, threats, harassment, gossip, policy violations, or breaches of legislation such as anti-discrimination laws can all occur in various online platforms, including messaging apps. Without an appropriate social media policy and effective training in place, employers may find it challenging to take appropriate action.

In this blog, we will delve into the importance of addressing employee social media usage and provide valuable insights into creating a robust social media policy and implementing effective training. By doing so, employers can safeguard their brand reputation, mitigate legal risks, and foster a positive and responsible online presence.

Is your company's social media policy and training process strong enough to protect you from unfair dismissal claims?

Recent decisions by the Fair Work Commission (FWC) shed light on the importance of clear and practical training, rather than just going through the motions.

Let's take a look at a real-life case from April 2023 involving two firefighters who were fired for sharing offensive and pornographic content in a private Facebook Messenger chat called "Sickos video sharing group." Here's the surprising part: one of the firefighters got his job back (check out Mr Martin Pelly v Ventia Australia Pty Ltd T/A Ventia 2023 FWC 907 18 April 2023). Despite posting inappropriate and sexist comments, the FWC reinstated him. Why? Well, it turns out he wasn't properly trained in the company's social media policy, and the online-only training he received was deemed inadequate.

It's interesting to note that most of the offensive posts were made outside of work hours. The FWC recognised that employees have a right to a private life and that it's not their role to judge personal behaviour. However, the second firefighter who posted a pornographic video during work hours wasn't as lucky (see Mr Adam Thompson v Ventia Australia Pty Ltd T/A Ventia [2023] FWC 904 -18 April 2023). It's common sense that sharing pornography while on the clock is inappropriate conduct, even without specific training.

Although the Facebook chat didn't mention the employer, and the employee didn't use work devices to post, the fact that the offensive message was sent during work hours justified the dismissal. The FWC criticised the employer's haphazard training approach, which seemed superficial and self-taught. They recommended face-to-face training with educational rigor and outcomes.

In another recent case (Mr Michael Varker v Victoria Police FWC 1161 – 17 May 2023), an employee's personal social media posts were found to be concerning, inappropriate, and racist. However, the FWC didn't consider them a breach of the employer's social media policy because they were made during personal time and didn't directly impact the employer's reputation.

What can you do to minimise you risk?

These cases serve as a reminder to employers to take specific actions:

Clearly define the boundaries and context for private social media posts, which can be more important than the content itself when dealing with disciplinary actions or termination decisions.
Review and improve the clarity and delivery of your social media policies and training. Make sure employees understand the policy's purpose, scope, and the platforms it covers (such as LinkedIn, TikTok, Facebook). Communicate clear expectations for representing the employer on public social media platforms, emphasising that online conduct can affect employment if it's connected to their job or reflects poorly on the employer.
Consider the appropriateness of your training approach, including the possibility of face-to-face sessions for your workplace.
Use plain language in your training materials and policies to ensure understanding.
Clearly communicate your expectations for employee conduct both inside and outside of work.
Regularly update and distribute your policies to align with changes in legislation.
Continuously monitor and enforce compliance with your policies.
Provide clarity on the boundaries for using personal accounts and devices when expressing divisive opinions or sharing offensive and inappropriate comments, as these can be traced back to the employer.
Educate employees on handling confidential information and respecting intellectual property boundaries when sharing online.

By implementing a strong policy and delivering clear, regular training, employers can eliminate any confusion about expectations for online conduct.

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