Do you need a social media policy ?

With the evolution of technology and popularity of social media, feedback can come from not only a wide range of clients, but also your own employees – potentially threatening your business reputation. So does your business need a social media policy?

The recent High Court Case of Comcare v Banerji highlights this and should raise a red flag to employers. The case serves to highlight the importance of having a social media policy and code of conduct to ensure employees’ are following their obligations online as well as at the workplace.

Michaela Banerji posted 9,000 anonymous tweets online criticising the government’s immigration policy whilst she worked for the Commonwealth. Her negative comments resulted in her dismissal in accordance with her employer’s code of conduct. Ms Banerji claimed unfair dismissal, arguing that her termination had impeded her implied right to freedom of political communication.

The Banerji case provides implications for near 2 million public servants across the country due to a landmark decision dealing with the constitutional implied freedom of communication. The court overturned Banerji’s successful unfair dismissal case, it being said that the implied freedom was not a “…personal right of free speech” and that although her comments were anonymous, they could still damage the reputation of a public service. Her actions went against her employer’s code of conduct.

How does this case apply to employers?

Although the Banerji case provides a precedent for terminating employees due to their social media conduct, proper disciplinary processes must occur if an employee breaches their obligation online. The employer must still consider if any damage or conflict occurred within or to the workplace.

The case should not be seen as a cue for employers to dismiss every employee who posts negatively online. A termination in such a case could still be unfair or unreasonable. The employer must ensure fairness in the decision, consider the employee’s past performance and reasonably assess how posts impact on their business. A breach of a known workplace policy would give an employer much stronger ground to consider termination.

Singh v Aerocare Flight Support Pty Ltd is a decision which supports this as Mr. Singh was found wrongfully dismissed for offensive comments on Facebook as the employer failed to research Mr. Singh’s Facebook activity which proved that his comments were sarcastic. This underlines that employers still have a duty to carry out dismissals in a fair manner even if they believe what has been posted is detrimental to the business.

What can you do to protect your business?

As an employer, having a Social Media policy can be of significant benefit. Induction to the policy allows employers the opportunity to have the conversation with employees about what is considered acceptable and reasonable for social media use in relation to their employment. You can decide if you will allow employees to reference their place of employment in online media, and place some controls over what type of images can be associated with your business.

Having a Policy and ensuring all staff are aware of the policy also provides you with grounds for disciplinary action should a staff member act inappropriately.

The Policy and education can provided safeguards against incidents as well as preventing issues occurring in the first place. Regular email updates or training sessions regarding social media conduct will also reduce potential legal processes and costs in future.

If you would like assistance generally in employment matters, please contact us on (08) 9321 5451 or by email kim@bailiwicklegal.com.au. For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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