"In the current electronic age, this is not sufficient and many large companies have published detailed social media polices and taken pans to acquaint their employees with those policies."
In this case, the employee, Mr Stutsel, was terminated after an investigation into certain comments that were made on his Facebook page. Mr Stutsel was employed by Linfox as a truck driver and had been with the company for approximately 22 years. During that time his employment record was virtually blemish-free, with no disciplinary matters ever addressed with him. Prior to his termination, his wife and daughter set up a Facebook account for him, which he had been using fairly frequently. He believed that his postings on Facebook were private, as that is what he was told by his wife and daughter, and stated that he did not know how to check and change his privacy settings anyway.
As it turned out, his Facebook wall was not as private as he believed, and it came to light that various comments, later claimed to be derogatory and offensive in nature, were seen by other employees. In short, these comments concerned a few Linfox employees and took place over an extended period of time. Linfox conducted an investigation and terminated him due to the nature of the comments made.
The Commissioner ultimately reinstated Mr Stutsel and also awarded him compensation for the difference in his pay for the period that he was not employed by Linfox. In making his decision, the Commissioner noted that since Linfox had no social media policy in place, it was hard for them to be able to demonstrate that they had fully educated employees on what the accepted standards of behaviour may be. The Commissioner further found that the nature of the comments made, whilst childish and immature, were more in the flavour of a conversation taking place in a pub or café, although admitting that it was in an electronic format.
Lessons for Employers
The lessons for employers are:
to ensure they have a comprehensive social media policy, tailored to their work place, to rely on in case something like this occurs (see our recent article "Social Media and Unfair Dismissal Guide for Employers) http://blandslaw.com.au/toolkit/employees/social-media-and-unfair-dismissal-guide-for-employers/
Not only that, but employers need to be able to demonstrate that the employees are aware of the contents of the social media policy,
and that there is a clear process in place for what happens when a breach of the policy occurs.
For further information and a full description of our social media law services, including policy development and implementation, you can visit our website. http://blandslaw.com.au/services/social-media-law/