There have been a number of recent cases involving social media in the Fair Work Commission, according to an employment law firm, which said HR executives should avoid “red flags” when dealing with unfair dismissals that involve social media.

While HR is generally very familiar with the need to accord procedural fairness and there is generally a high level of compliance, red flags involving social media lie in the reason for dismissal, said Alan McDonald, managing director of McDonald Murholme.

“The pressure within large corporations to achieve higher profits is causing an increased level of intolerance to employees, whose work is affected by family responsibility, pregnancy and illness or make complaints about workplace rights,” he said.

“HR executives must be on alert to managers who recommend disciplinary proceedings or dismissal in circumstances where the performance may be affected by these matters.

“It is to be expected that the general protections provisions of the Fair Work Act 2009 will be much more robustly pursued by employees in the future.”

Social media and other technologies are increasing at a much faster rate, and McDonald observed that there will always be a lag in the legal system dealing with these matters.

“The challenges that now face workplaces include interoffice discussion through social media platforms,” he said.

“HR executives must be on alert to managers who recommend disciplinary proceedings or dismissal in circumstances where the performance may be affected by these matters”

Employees think that their private discussions are protected, however, he observed there is a blurred line that dictates where it is privileged information to those in the conversation, or public information.

“The Fair Work Commission approach is never very predictable because it is not a court bound by legal precedent in the strict sense,” he said.

“It aims for consistency but given the wide variety of factual circumstances presented to the Commission, every case is different, the safest course is always the negotiated settlement with the employee on confidential terms.

“No one wants to be the landmark case, especially where chatter on the internet is involved.”

While nasty comments about the company made privately may warrant dismissal, McDonald said a published decision may give the wider community the impression that the company is as described by the dismissed employer.

“Competitors and others will relish the derogatory comments publish online.”

“No one wants to be the landmark case, especially where chatter on the internet is involved.”

McDonald said that the most controversial contemporary issue is probably the impact of social media on the smooth operations of businesses.

“Where do you draw the line against private and confidential discussions by employees in or out of working time, which may be slanderous to other employees, management or the company?

“Derogatory comments on social media by employees wherever they are made are disruptive of a coherent, highly motivated workplace,” he said.

In future, McDonald said the Fair Work Commission will lean towards protecting the employer which is generating work and profits for the economy.

“It will not want to reinstate dismissed employees who have been making derogatory comments, even if those comments were intended to always remain a secret,” he said.

“The Commission will not want to award high compensation because to do so will be seen to be rewarding the dismissed employee who has cause hurt and distress to another employee, or has harmed the reputation of the company.

“It is expected that the right to free speech and expression will not override the need for a peaceful and harmonious workplace.”

“Facebook comments made outside of work hours did amount to a valid reason for dismissal”

Over the past years, McDonald said there have been many cases that have been taken to the Fair Work Commission that are setting a precedent for future rulings.

Recently in Clint Remmert v Broken Hill Operations Pty Ltd T/A Rasp Mine, for example, the applicant had been dismissed for alleged bullying conduct via Facebook.

“In this instance, Facebook comments made outside of work hours did amount to a valid reason for dismissal,” said McDonald.

“The Fair Work Commission commented that while the employer did have a detailed social media policy, the employee had not been properly trained/consulted on its detail.”

Posting offensive or derogatory statements about managers or employees on social media could be grounds for termination of employment, McDonald said.

In Linfox v Stutsel, for example, the Fair Work Commission found “comments made directly to managers and other employees and given wide circulation in the workplace will be treated more seriously than if such comments are shared privately by a few workmates in a social setting.

“In ordinary discourse there is much discussion about what happens in our work lives and the people involved.

“Having a policy without informing or training employees can be rendered useless”

“In this regard, we are mindful of the need not to impose unrealistic standards of behaviour and discourse about such matters or to ignore the realities of workplaces.”

McDonald said both cases highlight red flags within the employer to address such issues.

In Clint Remmert v Broken Hill Operations Pty Ltd T/A Rasp Mine, the employer had a social media policy.

“However, having a policy without informing or training employees can be rendered useless,” said McDonald.

“Linfox v Stutsel shows that outlining what is and is not offensive communication can create a better understanding of policy surrounding social media in the workplace.

“Moving forward, yet in reflection of prior Fair Work rulings, HR executives need to address points of exposure for mitigation and act accordingly to minimise risk.

“Employers need to be proactive with their workplace procedures to protect both the reputation of their company but also their employees.”

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