Home' HR Monthly : March 2017 Contents March 2017 HRMonthly 47
Can you remember the “olden” days?
Before Facebook? Instagram? Twitter?
Snapchat? Do you remember how simple
those days were when an employer could ‘tar
and feather’ anyone caught standing around the
water cooler bagging their work, their boss, or
These days, the channels of communication
for employees to share their discontent are
endless. A nd it’s out there – beyond the walls of
the office or the IT server. It’s etched in instant
updates on employees’ social media news feeds.
If an employee has a great Klout score, then the
damage to an employer’s brand has disastrous
potential – even if it’s about an online tit for tat
over a stolen sandwich from the office fridge.
In the employment law space social media is
fraught with complication because the social
media “square peg” does not always fit nice and
neatly into the legislative “round hole”.
A blu rred line exists between an employee’s
freedom of expression and right to privacy, and
any outside hours conduct and comments that
undermine trust and confidence or an employer’s
This begs the question – does Big Brother need
to become Bigger Brother to contain the rhetoric
fed into the ether? The band-aid solution, given
the general lack of speed at which legislation and
case precedent progresses, is in the affirmative.
You may have heard that story about the bloke
who over-imbibed one evening and then bragged
to his mates on Facebook about how he was
going to take a sickie. Given his inebriation, he
forgot that he was a Facebook “friend” with his
boss who saw the post. His work friends never
saw him again. True story. The moral is that
employers are feeling more empowered in this
digital age and are getting their own back.
Social media slap
The past couple of years have seen a number
of cases test the boundaries of how and when
employees’ social media activity can be used
by an employer to justify disciplinary action.
The outcomes of some of these cases give useful
guidance for H R.
Real life case examples where courts
or tribunals backed employers who fired
disgruntled employees for inappropriate activity
on social media have included:
• Calling clients “spastics” and “whingeing
junkies” on Facebook;
• Disclosing information about an employer’s
internal systems and processes on Facebook
and then topping it off by calling the employer
“utterly disgraceful”; and
• Displaying contempt for a colleague in the
employers who fired
contempt for a
colleague in the office
and ‘defriending’ them
How to react to employees’ social media comments
office, and “defriending” them on Facebook.
Other examples where the courts or tribunals
did not agree with the employers’ disciplinary
• “Liking” complaints made by customers on
• Complaining about poor treatment at work;
• Making sarcastic remarks on Facebook such
as “Xmas ‘bonus’ alongside a job warning,
followed by no holiday pay!!! Whooo! The
Hairdressing Industry Rocks man!! Awesome!!!”
So, why do the courts seem to support some
disciplinary action by employers, but not others?
Looking at these cases it seems there are four key
things that HR should consider before pulling the
trigger. Make sure that the behaviour for which
you are disciplining your employee:
• Relates to their actual work;
• Shows an actual intention to damage the
• Damages the brand or that of others at your
organisation in a way that is tangible; and/or
• Is in breach of a written social media policy.
Big Brother is certainly becoming Bigger
Brother, and not just because employers are
stumbling across these gems in their home time
and acting upon them.
You have probably heard of the many minions
employed by top ASX listed companies in
their social media command centres. These
customer communications officers spend their
time monitoring and responding to disparaging
remarks and complaints by consumers about a
product or lack of service. It’s not a bridge too far
to imagine that this may well become the nex t
wave of human resources advisor. •••
BY CASSIE BRAIN, SPECIAL COUNSEL, WORKPLACE RELATIONS
17/02/2017 5:28 PM
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