Social media and work - what not to do

Workplace issues arising from social media use are an increasing problem for IEU members. Members have been given formal warnings and in some cases, threatened with dismissal, for their conduct on personal social media sites such as Facebook, Twitter, Instagram and messaging apps such as WhatsApp. As a result, we are often asked about what is and is not appropriate on these sites, and how a personal social networking page becomes the business of your employer.

Australian courts generally consider two elements in cases of social media misconduct. Firstly, whether your conduct on Facebook can be connected back to your employer, and secondly, whether it caused damage to your employment relationship.

Fair Work and social media

The Fair Work Commission (FWC) has often found that conduct on your social media page can be connected to your employer. Defences such as the fact your page was private, or that you didn’t mention your employer, are not strong in the event of a disciplinary matter. In a recent case, a credit company employee’s Facebook page listed his employer as Jurassic Park and his position as a dinosaur wrangler. The employee posted damaging statements on the Facebook page of a third company that worked closely with his employer.

Despite the fact he did not identify himself as an employee of his company, he could be identified through photos and his name, and the Commission found that it was reasonable for his employer to find that his conduct could damage their business interests. (Little v Credit Corp Group Limited [2013] FWC 9642).

On a practical level, the fact someone has seen and complained about your conduct on social media is indication enough that your information isn’t private. The FWC has also considered factors such as whether you have colleagues or clients as friends and whether you post information about your work generally to show that your cyber conduct can be linked back to your work.

The second element the FWC will consider is whether your conduct on social media was damaging to the employment relationship. This will include obvious misconduct, such as writing derogatory or inappropriate comments about your colleagues, students or your workplace. The Commission has also found that comments on social media that can be damaging to the business interests of the employer can damage the employment relationship. For example, claims that an employer was corrupt on an employee’s personal MySpace page were found to be a valid reason for termination, despite the employee not mentioning the name of the employer. This was because it could reasonably be seen to have damaged the employer’s reputation and therefore business interests. (Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544).

This is a low threshold test – your employer doesn’t need to show that their interests were damaged, just that they could be damaged by the conduct.

Teachers and support staff beware

For teachers and support staff in schools, this is problematic. For employees in faith-based schools, posts on your personal Facebook page which conflict with the values or ethos of the school may be sufficient grounds for a warning. This can extend to photographs that you publish on social media sites. In addition, teachers are held to a high public standard, meaning comments about funny things you have heard students say or do may be seen as inappropriate. Recent disciplinary matters the IEU has assisted on have involved humorous comments about daily life as a teacher and negative comments about a colleague made in a private Facebook chat but witnessed by a co-worker.

Several cases from Queensland have focused on child protection issues arising from Facebook or social media conduct. Being ‘friends’ with students on social media has been considered an inappropriate personal relationship and may lead to a child protection investigation. This extends to former students, especially if they have only recently ceased being your student or if they are still of school age.

Take care as you share

If you choose to have a social media profile, be cautious about what you share and who you share it with. Below are some tips about how to remain cyber-savvy. The IEU runs a PIP: Anti-Social Media going through this information and more, so keep an eye out if it comes near you.

Don’t mention your job on social media. This includes mentioning where you work, or what your role is, as well as both in the information section of your social media profile and also in the comments you make.
Be careful about who you ‘friend’. Do not become friends with students or former students. Also exercise caution in accepting colleagues or members of the school community such as parents as ‘friends’. The more people connected to the school who see your social media profile, the more likely your social media conduct will be referred back to your employer.
Think before you post. Assume that nothing you write is private. Therefore, don’t share anything on your profile that you wouldn’t want to put in writing to your employer.
Triple check your privacy settings. You should have the strongest privacy settings available. Where possible, take additional measures such as using a variation to your name, making it more difficult for students or employers to identify you.
Belinda Miller
Industrial Officer