Being a fan of Guardians of the Galaxy you can’t imagine a third movie being released without James Gunn (director) at the helm. The man responsible for bringing “Rocket Racoon” and “Groot” to the big screen was fired by Disney for tweets that recently emerged.
The kicker – the tweets were over ten years old!!!!!!
The modern day workplace and the advent of social media means a different world. For Employers social media is an impactful and cost effective way to promote the business and build a corporate brand much quicker and in a more authentic way than in the past. It also comes with much more freedom for people to express themselves, their humour, eccentricities and political and religious leanings.
However, social media is a double edged sword, companies like Disney are not immune to its dangers – the tweets from Gunn included provocative comments about paedophilia and rape. Although Gunn contends they were meant to be humorous no doubt any employer let alone a conglomerate such as Disney will see such conduct as misconduct and in Gunn’s case his employment was terminated immediately.
Closer to home, in the recent case of Bridgwater v Healthscope Operations Pty Ltd  FWC 3921, an employee was dismissed for serious misconduct because of an explicit message sent to another employee on Instagram. The Commission upheld the dismissal despite the fact that the message was sent privately between the employees and occurred after hours in a pub.
The case is yet another reminder for businesses and employers to review their policies when it comes to use of social media, regardless of whether the use is during working hours. There are several reasons for this:
- Reputational damage The key risk to a business is the damage to reputation and subsequent loss of goodwill if an employee engages in unacceptable behaviour on social media. Regardless of their seniority, all employees are still representatives of a business. Who would want to deal with a business who hires unsavoury people?
- Workplace health and safety risksAn employer must protect its employees from harm as part of their WHS obligations, and this is an obligation that extends to social media. The Bridgwater case is a clear example of this. If the employer did not take action, it would have been liable under WHS Law for failing to prevent the sexual assault of its employee.
- Privacy law risks Many businesses these days have official social media accounts to assist in marketing or to connect with the public. What if an employee accidentally mixes up their personal account with the official account? The answer is that you as an employer may be liable under the Information Privacy Principles for failing to prevent misuse of the account. This is in addition to the considerable embarrassment and reputational risks that may arise.
To avoid these consequences, employers need to ensure their policies, procedures and training are up to date with latest trends in social media, as well as any developments in the law.
- Consider having a dedicated social media policyIt is very helpful if employers can introduce a social media policy. This allows the employer to mitigate risks associated with misuse, provide grounds for misconduct, as well as set its expectations. Many employees assume that once they finish work, they are no longer a representative of the employer. Cases in the Fair Work Commission have proven that this is simply not true. A social media policy is capable of rectifying this by setting a clear expectation that employees are to conduct themselves professionally, whether on or off work.
- Consider whether you have trained your staffHaving a well drafted social media policy is great, but it becomes much more effective when coupled with refresher courses or additional training. Employees should be reminded of their obligations on a regular basis to ensure that the message is clear. Employers can also use training as a pre-emptive, as it demonstrates their commitment to ensuring a safe workplace.
- Consider your current proceduresUnacceptable use of social media can be obvious or it can be subtle. A breach of policy must still be properly investigated, and that an employee must be given an opportunity to respond to allegations brought by an employer. This is particularly important where employees have implied that the content of their social media publication is regarding their employer, but it is not explicitly clear.
For Employers – if social media is a big part of your marketing and advertising campaign and spend, consider also its ramifications if your employees misuse these platforms – would the damage be substantial? Would you need to take action like Disney (and risk another employee with your prized products of Star Lord & Co)? If so, having the right polices and procedures in place with adequate training will mitigate a lot of risk.
Could your company be at risk by not having the right policies or procedures in place? NB Lawyers, the lawyers for employers offer a complimentary consultation to discuss how we can assist you with any concerns you may have regarding your policies or procedures.
About the Authors
Jonathan Mamaril is the principal and director of NB Lawyers, the lawyers for employers, and a specialist in employment law. Over the last ten years, Jonathan has helped hundreds of employers understand their legal requirements, mitigate risk and liability, protect their reputation and achieve their goals for business growth and expansion.
Dan Chen is a lawyer at NB Lawyers, the lawyers for employers, and specialises in employment law. Dan is passionate about assisting business owners, small and large understand their obligations under Australia’s complex workplace relations system.