In today’s world a large proportion of people are connected via social media. As a result, companies are creating policies which restrict their employee’s activities on social media, both in and out of regular work hours.
In a recent case of Pearson v Linfox Australia Pty Ltd [2014] FWC 446, the Fair Work Commission (the “FWC”) considered whether a company can validly regulate their employee’s social media activities outside of the employee’s regular work hours.
Background
Mr Pearson began his employment at Linfox Australia Pty Ltd (the “Company”) in January 2007.
The Company had numerous workplace policies, one of which set out the acceptable use of social media by its employees. All of the Company’s employees were required to accept the policies, acknowledging that they had read and understood the contents of each policy.
Mr Pearson refused to sign the social media policy because, he claimed, that it intended to apply outside working hours and as the Company “does not pay me or control my life outside of working hours, they cannot tell me what to do or say outside work, that is basic human rights on freedom of speech.”
On 21 May 2013, the Company terminated Mr Pearson’s employment based on his lack of cooperation in refusing to sign the social media policy, as well as his repeated breaches of the company’s other policies.
Mr Pearson then lodged an application with FWA, alleging that he was unfairly dismissed.
The FWC’s Decision – The Validity of the Social Media Policy
In considering the Company’s social media policy, the FWC stated that “in an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business. It also serves a useful purpose by making clear to employees what is expected of them. Gone is the time (if it ever existed) where an employee might claim posts on a social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making it clear that excessive use of social media at work may have consequences for employees.”
The FWC also stated that “it is difficult to see how a social media policy designed to protect an employer’s reputation and security of business could operate in an at work context only. I accept that there are many situations in which an employer has no right to seek to restrict or regulate an employee’s activities away from work. However, in the context of the use of social media, and a policy intended to protect the reputation and security of a business, it is difficult to see how such a policy could operate in this constrained way.”
The FWC concluded that, although Mr Pearson’s refusal to sign the social media policy was not itself serious enough to justify terminating Mr Pearson’s employment, when it was considered together with the breaches of other company policies, Mr Pearson’s termination was not harsh, unjust or unreasonable. Mr Pearson’s application was dismissed.
Making sure you have the Right Social Media Policy
When considering the right social media policy for your company, it is important to remember that your employees’ actions/activities online, even if done so outside of work hours, can still have a detrimental impact on your business’ reputation and security.
Although a single breach of a company policy may not be considered serious enough to dismiss an employee, repeated breaches may justify the employer’s right to terminate an employment contract. Always remember, it is important to issue and record all verbal and written warnings, as such evidence may be required if the employee makes alleges an “unfair dismissal”.
If you require a social media policy which is appropriately directed at protecting the reputation and security of your company, please do not hesitate to contact Foulsham & Geddes.
