Monday, 10 April 2017

Jessica Anderson, Graduate Associate

Social media has enhanced the opportunity for everyone to voice their opinions on a diverse range of subjects. But an employer does have at its disposal mechanisms to counter the publishing of content on social media by their employees that may be detrimental to it, even where this occurs outside of work or does not directly involve work matters.

In 2013, Army Reservist Bernard Gaynor published insulting comments on social media about a transgender officer and the “threat” of Islam. He also made comments criticising the federal government and a number of Australian Defence Force (ADF) policies. When asked to remove his posts, he refused. He was subsequently dismissed pursuant to the ADF’s power under Defence Force (Personnel) Regulations 2002 (Cth), which enabled the ADF to take disciplinary action to maintain the high standards of discipline required.

In 2015, Gaynor challenged this decision, claiming that his comments were protected by the implied constitutional right of freedom of political communication. While he was initially successful in his claim, the Full Court of the Federal Court’s recent decision upheld the ADF’s right to sack Gaynor over his extreme social media comments. The regulation used by the ADF to dismiss Gaynor was found not to be designed to control freedom of communications, but rather was directed at the suitability of individuals to remain as officers of the ADF. The Court also ruled that in any event the implied freedom of political communication was only a limitation on the exercise of legislative power, and did not apply to all terminations resulting from inappropriate social media comments.

While most employers do not operate under these types of regulations, employers are able to act with respect to social media comments that affect their interests, just as the ADF could act to protect its interests.

As such, we have put together some reminders to help employers find the appropriate balance between allowing employees to express themselves through social media and maintaining the interests of the employer.

1. The employer’s interests

Employees must be guided by the interests of the employer. These interests may include reputation, appropriate standards of behaviour, as well as the proper way of dealing with clients.They are representatives of the organisation and should be made aware of their responsibilities to uphold the organisation’s reputation and business interests

2. Social media policies

As an employer, you can restrict how your employees use social media, to the extent that is necessary to protect the interests of your organisation. It is helpful to tailor your social media policy to fit the nature of the organisation. For example, what types of public interactions are necessary for the functioning of your business? Do you use social media to attract potential clients?

Policies help to ensure that employees are aware of their responsibilities in expressing views online and the consequences that may flow from their actions. Policies should make clear that social media should not be used for the purposes of inappropriate workplace behaviour, such as bullying or harassment. Gaynor should have known that his comments breached a number of policies, but he refused to take down his posts, which is where the difficulty started.

3. The tech tips that are sometimes forgotten

Content should be considered permanent and searchable, and content intended to be private may be re-broadcast. Make it known to employees that content they post on social media may be associated with their employer. Employees are often searchable on the organisation’s website, or perhaps the first two hits on google when typing in someone’s name could be their LinkedIn account or their Twitter account. Whether intentional or not, employees are readily linked with their employer.