Workplace Relations Australia: Policies for Social Networking

Monday, September 19, 2011

Policies for Social Networking

There was a recent incident where and employee working for an Australian based IT company posted a number of very negative and damaging comments about his employer on his facebook page. The employer is a public company and this information provided was deemed to be sensitive and could have had a very negative impact on the market’s perception of the employer. The employer had no idea as to what were their rights in this situation.

So, the big question is; how do I manage the employee’s use of social media. A recent case in Townsville featured a retailer and one of their employees who saw fit to post his frustrations about pay issues on their facebook page. The post was threatening and offensive. They did not directly referencing the company but members in their network were also employed by the company so could have been clearly identified.

The end result was that the company terminated the employee for gross misconduct and the employee subsequently lodged an unfair dismissal claim with Fair Work Australia. In the end, Fair Work ruled that the dismissal was fair and that the employees conduct warranted his dismissal for “misconduct” and the fact that even though the posts were made from home outside of working hours made no difference.

So what have we learnt from this case?

It shows that employees cannot say what they like about their employers on social media.
Employers may treat negative posts as a breach of discipline, and
Highlighted the importance of the company providing policies which offer a clear guideline regarding what is and is not acceptable for posting on their social media accounts.

What should be in a Social Media Policy?

Clearly define what you mean by ‘Social Media” and define the technology
Clearly define who is deemed to be responsible for the post.
Provide “Topic” guidelines which help the employee to understand what is acceptable.
Provide “off limits” guidelines to what is deemed to be unacceptable and defamatory content

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Did You Know?

The new Fair Work Legislation came into effect on the 1st July 2009 replacing Work Choices 1995 and the Workplace Relations Act 1996

Unfair Dismissal

As from 1 July 2009, employers who employ 15 employees or more will be now be subject to the unfair dismissal legislation. However businesses with less than 15 full time equivalent employees are exempt from unfair dismissal claims during the employee’s first 12 months of employment.

The unfair dismissal legislation only applies to an employee who earned less than $153,600 (to 30 June 2021), not including commissions and bonuses unless they are subject to a modern award or enterprise agreement.

Leave

Under the new legislation sick leave is now referred to as personal and Carer’s leave provision.

Under the New Fair Work Legislation, all employees who fall under the act are entitled to 10 days personal Carer's leave per annum

Employee's sick leave entitlement is cumulative and there is also no upper limit. All unused leave is cumulated year on year indefinitely.

While on unpaid parental leave, an employee does not accumulate annual leave and personal/carer's leave (which includes sick leave). However, a period of unpaid parental leave does not break an employee's continuity of service for the purposes of long service leave?

You may refuse a request for annual leave if refusal is reasonable and necessary because of your business' operational requirements. Accordingly you may reject the employee's annual leave application. If you decide to do this however, you should explain these grounds clearly to the employee and discuss other times that may be more suitable.

Fair Work Inspector

A Fair Work Inspector has the right to inspect your workplace as part of an audit campaign or in response to a complaint.

On showing suitable identification, Fair Work Inspectors may undertake inspections without warning if they believe work governed by national workplace relations laws is/has been done there.

During an inspection, a Fair Work Inspector can

i) inspect any work, process or object

ii) interview any person,

iii) require a person to tell them who has custody of, or access to a record or document,

iv) require a person who has custody of, or access to a record or document to produce the record or document either while they are on the premises, or within a specific period,

v) inspect and make copies of any record or document that's kept on the premises or is accessible from a computer kept there, take samples of any goods or substances.