Social Media In The Workplace Presentation (Josh Bornstein) 02.03.12

Social Media in the WorkplacePage 1

Social Media in the WorkplaceBy Josh Bornstein

2 March 2012

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Social Media in the Workplace - Introduction

• It is clear that Australians are embracing social media such as Twitter, MySpace and Facebook

• In 2010, the Nillson company reported that Australians had the highest global average for engaging with social media, an average of 7 hours per month per person engagement with social media


Social Media in the Workplace - Introduction

• In January 2012: Facebook recorded 13 million visitors from Australia You Tube received 11 million visits Blog Spot, Linked In and Twitter obtained a combined total

of over 7 million Australian visitors


Social Media in the Workplace – Social Media defined

• Social media refers to Internet sites which allow individuals and groups to develop content and share information via online networks of people

• Includes sites such as Facebook MySpace and You Tube

• Is a form of mass communication


Social Media in the Workplace - Controversy

• Some examples of recent controversy generated by social media include: Barrister Julian Burnside QC’s “paedos in speedos” tweet

for which Mr Burnside QC offered an unreserved apology Catherine Deveny’s 2010 tweets on Logies night,

particularly about Bindi Irwin and Rove McManus Tweet from the high-profile indigenous lawyer, Professor

Larissa Behrendt, to the effect that watching a show with a man having sex with a horse was less offensive than indigenous activist Bess Price


Horror files from the US

“Video prank at Domino’s Taints Brand”• 2 Domino’s employees were fired and ended up with felony charges

of distributing prohibited foods after filming a prank in the restaurant’s kitchen and posting it on YouTube.

• More than a million people viewed the clip, which showed one of the workers putting cheese up his nose and other disgusting acts with food. The second employee narrated the prank.

• Within just a few days the video was listed in five of the 12 results on the first page of the Google search for “Dominos,” and discussions about Domino’s had spread throughout the Twitter.

• Reeling from a public relations nightmare, Domino’s considered preparing a civil lawsuit against the pranksters“We got blindsided by two idiots with a video camera and an awful idea…Even people who’ve been with us as loyal customers for 10, 15, 20 years, people are second-guessing their relationship with Domino’s, and that’s not fair.” Domino’s spokesman, Tim McIntrye

Stephanie Clifford, ‘Video prank at Domino’s taints brand’, New York Times, April 15 2009


Horror files from the US cont.• “KFC Sink Trio Finger Lickin’

Fired”• Three girls from California

were fired after posting pictures of themselves bathing in their workplace’s sink in their underwear

• The girls were found out after one of them posted the pictures to her MySpace profile in a special “KFC Moments” photo gallery

• It was not the first case of its kind. A Burger King employee had posted similar shots to MySpace the previous year.

‘KFC Sink Trio Finger Lickin’ Fired’, Sky News HD, December 12 2008


Horror files from the US cont.

“How to lose your job on your own time”• A young woman was dismissed from a student teaching

program after posting a picture of herself on her MySpace page wearing a pirate hat and drinking alcohol from a plastic cup, with the caption ‘Drunken Pirate’ underneath.

• She filed a lawsuit in April that year in Federal Court in Philadelphia contending that her rights to free expression under the First Amendment had been violated.

• The University, in a motion asking the Court to dismiss the case, said there were a number of reasons for her dismissal, and backed the school authorities’ contentions that her posting was “unprofessional” and might “promote under-age drinking.”

• It also cited a passage in the teacher’s handbook that said staff members are “to be well-groomed and appropriately dressed.”

Randall Stross, ‘How to lose your job on your own time’, The New York Times, 30 December 2007


A horror file from Melbourne

“Plankers bonkers? Workers fined for Facebook foolhardiness”

• TWO employees of Ebara Pumps who planed at work and posted the photos on Facebook were fined $1500 each in the Ringwood Magistrates Court.

• WorkSafe prosecuted the employees under s 25 of the Victorian OH&S Act for failing to take reasonable care for themselves and others in the workplace.

• The two men were dismissed after management was informed about the photos by WorkSafe.

AAP, ‘Plankers bonkers? Workers Fined for Facebook foolhardiness’, The Age, 8 September 2011


A horror file from Melbourne cont.

AAP, ‘Plankers bonkers? Workers fined for Facebook foolhardiness’, The Age, 8 September 2011


Social Media in the Workplace – Damage to Corporate Brand

• Damage to a brand or company from the use of social media can be rapid and spectacular: Attacks on the big four banks for their failure to pass on

interest rate cuts, the offshoring of jobs and executive remuneration

Victoria’s Workplace Health & Safety regulator, WorkSafe, has a Facebook page about it entitled ‘Unsafe WorkSafe’, following allegations of bullying by employees

Qantas in aftermath of shutting down and locking out employees in October 2011


Social Media in the Workplace – Regulating Social Media Usage: The role of workplace policy• As there is no specific social media legislation,

employers are setting out rules for social media usage in workplace policies


Social Media in the Workplace – Regulating Social Media: The role of workplace policy• A good checklist would include the following:

A definition of social media Application of policy – to whom and when does the policy

apply Information about the difficulty of maintaining privacy in

social media Advice on whether employee use of social media will be

monitored by the employer A set of clear rules and standards that employees are

expected to comply with Information on the risk that social media for private

communication will become public


Social Media in the Workplace – Regulating Social Media: The role of workplace policy• The Maurice Blackburn policy contains the

following advice to the firm’s employees: Approach online worlds in the same way as you would the

physical world Use your judgment, commonsense and adhere to the

firm’s policy and values Social media has made access to information very easy Be conscious of mixing your personal and business life Be conscious of what you are posting as it will be around

for a long time


Social Media in the Workplace – Regulating Social Media: The role of workplace policy• Last February, the FSU sought the suspension of

the Commonwealth Bank’s social media policy on the basis that it was too restrictive because it:

Prohibited employees from publishing any information about the bank or its customers on social media

Required employees to notify their manager of any negative content posted or stored by others, including non-employees

• The bank amended its policy to make it less restrictive


Social Media in the Workplace – The Public and the Private: The diminishing line• Ross VP in Rose v Telstra referred to:

R v Railways Appeal Board; Ex parte Haran; (1969) WAR 13, where it was held that an employer could validly dismiss an employee for misconduct after hours that extended from an assault occuring at work

Orr v University of Tasmania (1957) 100 CLR 526, where it was held the University was justified in dismissing a Professor who had an affair with one of his students


Social Media in the Workplace – The Public and the Private: The diminishing line• In Re Wearne; (1893) 2 QB 439, where it was held

that a solicitor’s name could be removed from the role of legal practitioners when he allowed a house of which he was a landlord to be used as an illegal brothel


Social Media in the Workplace – The Public and the Private: The diminishing line - Summary• In Rose v Telstra, Ross VP analysed when out of

hours conduct can give rise to a valid termination, namely when: Objectively viewed, the conduct is likely to cause damage

to the relationship between the employee and employer, or

The conduct damages the employer’s interests, or The conduct is incompatible with the employee’s duty as

an employee

• The conduct must be of such a nature as to indicate a repudiation of the employment contract by the employee


Social Media in the Workplace – The Public and the Private: The diminishing line – Summary • In Rose v Telstra, it was held that the employee’s

after hours violence against another colleague did not justify his dismissal because it lacked the requisite connection with his employment and did not tarnish Telstra’s reputation or the public perception of Telstra


Social Media in the Workplace – The Public and the Private: The diminishing line – Recent example• In Telstra Corporation v Streeter [2008] AIRCFB 15,

the AIRC dealt with the case of an employee who had sex with one of her colleagues in proximity to other colleagues following a work Christmas party and remaining in the toilet when one of her colleagues went to the toilet

• It was held, on appeal, that the relationship of trust and confidence between Ms Streeter and Telstra was destroyed by Ms Streeter’s conduct and her reluctance to answer questions about her after hours conduct during the investigation process


Social Media in the Workplace – Social Media Implications for Unfair Dismissal Claims• This is the major area where social media and

employment law intersect• The cases appear to fall into three categories:

Employees expressing their frustrations with work online Employees posting questionable photos during and after

work hours Excessive use of social media during work hours


Social Media in the Workplace – Social Media Implications for Unfair Dismissal Claims: Airing workplace frustrations online• I have selected five case examples to look at in

this area• Three out of the five went in the employee’s favour


Social Media in the Workplace – Social Media Implications for Unfair Dismissal Claims: Airing workplace frustrations online• Case 1

In Luzsewski v Capones Pizzeria Kyneton [2009] AIRC 280, an employer attempted to have an unfair dismissal claim dismissed on the basis that it was frivolous, vexatious or lacking in substance

The employee alleged that he was dismissed because he posted a status update on Facebook saying he was “pissed off”

The post did not indicate at whom it was directed or mention the employer

FWA held that the employer’s motion should be dismissed as, if this was the reason for dismissal, it was necessary to consider whether there was a valid reason for the dismissal



Publishing a negative blog on a Facebook page following an unsuccessful sexual harassment investigation was a valid reason for dismissal (Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544)

The employee wrote on MySpace that management were “witch hunters” and that she had just been through an investigation that “in the end advanced corruption”

Thatcher C held that the employee’s conduct was a valid reason for dismissal

The employee had not only published the blog but had refused to modify or remove it within a reasonable time

It was not necessary to consider whether the employer had a social media policy or whether the employee’s conduct had damaged the relationship of mutual trust and confidence



Another decision where an employee’s social media post were found to justify their dismissal was the decision of Damian O’Keefe v Williams Muir’s Pty Ltd t/a Troy Williams The Good Guys [2011] FWA 5311

Following issues with his pay, the employee posted on Facebook that he “wonders how the f**k work can be so f***king useless and mess up my pay again. C***s are going down tomorrow”

His employment was terminated for misconduct after the post was read by work colleagues


Social Media in the Workplace – Social Media Implications for Unfair Dismissal Claims: Airing workplace frustrations online• Case 3 (cont)

The employee argued that the posts were made outside work hours and no mention of the employer was made on his webpage

Swan DP referred to the company’s handbook which contained policies on bullying and harassment

She commented that even without the handbook, “commonsense would dictate that one employee could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred”

It did not matter that the comments were made outside work hours and from a home computer



A decision that went in the employee’s favour was the case of Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358

Ms Fitzgerald wrote on her Facebook page: “Christmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! WHOOOOO! The hairdressing industry rocks man!!! Awesome!!!”

Ms Fitzgerald had received less than she expected as a bonus and was paid half her holiday pay by cheque rather than cash

Ms Fitzgerald’s employment was terminated



Bissett C commented: “Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.”



It was held that Ms Fitzgerald’s posts were not detrimental to the business as it did not name the workplace and there was no evidence that the five to ten clients who were friends with Ms Fitzgerald had read the comments



The most recent decision on point, which was also in the employee’s favour, was the decision of Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444

Mr Stutsel was dismissed for making negative comments on his Facebook page about management, which management found amounted to sex and racial discrimination

The employee contended that the comments were not derogatory and that he had maximum privacy settings on his Facebook page



Roberts C held that the comments had “very much the favour of a group of friends letting off steam and trying to outdo one another in being outrageous”

Roberts C was also critical of the company’s failure to have a social media policy

Roberts C ordered that Mr Stutsel be reinstated


Social Media in the Workplace – Social Media Implications for Unfair Dismissal Claims: Posting inappropriate photos online• Case 1

The employee represented that he was unfit for duty on 30 and 31 December 2009 and sought to claim sick leave

The employer had a photograph from a Facebook page showing the employee participating in New Year’s Eve celebrations

The employee was not able to explain his actions His Application was dismissed as having no reasonable

prospects of success (Antony Dekort v Johns River Tavern Pty Limited t/a Blacksmith’s Inn Tavern [2010] FWA 3389



An employee was dismissed following a photo on Facebook of her posing in a cardboard car at work during work hours

The photo was posted on Facebook by a friend The company alleged the employee had stolen its

property to make the car and had caused irreparable damage to the company name

Macdonald C found that the employee’s dismissal was unfair because there was no evidence of damage to the company name (Mayberry v Kijani Investments Pty Ltd ATF The Investments Trust Subway Wallsend t/a Subway [2011] FWA 3496



In a recent decision, two employees of a pumps manufacturer were fined $1,500.00 after uploading photographs of themselves planking at work

They were dismissed from their employment They were charged with breaching the State Occupational

Health & Safety legislation No conviction was recorded


Social Media in the Workplace – Social Media Implications for Unfair Dismissal Claims: Excessive social media use during work hours• Only one case so far• The employer terminated the employee’s employment one

day before his resignation was due to take effect• The employer discovered 3,000 chats in his Google mail

account• Gooley C concluded that excessive use of the internet for

personal reasons may constitute misconduct but there was insufficient evidence to support a finding of misconduct in this case

• The company was ordered to pay the employee compensation for the day he would have worked (Richard O’Connor v Outdoor Creations Pty Ltd [2011] FWA 3081)


Social Media in the Workplace – Conclusion

• Social media is being used by employers to scrutinise the conduct of their employees more than ever before

• It is also used to screen potential employees• While the principles are relatively clear, the

application of principles in unfair dismissal cases involving the use of social media is difficult

• Post from Stutsel : “The probability of being watched is directly proportionate to the stupidity of your act”


Social Media in the Workplace

Josh BornsteinPrincipal Employment & Industrial Law Email [email protected]

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Social Media In The Workplace Presentation (Josh Bornstein) 02.03.12