employment law

Social media policies are a necessity for large companies – Fair Work Australia

HomeBlogCase studiesSocial media policies are a necessity for large companies – Fair Work Australia

by

reviewed by

Malcolm Burrows

The case of Stutsel v Linfox Australia Pty Limited [2011] FWA 8444 demonstrates the need for organisations to have a social media policy to clarify boundaries of acceptable and unacceptable conduct online.

Background

Mr Stutsel (Applicant) had been employed by Linfox Australia Pty Ltd (Company) as a truck driver for over twenty-two (22) years and had an excellent work history.  His employment was terminated for serious misconduct because of a number of disparaging comments on his Facebook page about two (2) particular managers.  The Company argued that the dismissal was justified because of the following comments on Stutsel’s unrestricted Facebook page:

(a) a number of statements about one (1) of his managers that amounted to racially derogatory remarks;
(b) statements about one (1) of his managers that amounted to sexual discrimination and harassment; and
(c) two (2) extremely derogatory statements about two (2) separate managers.

As a result his dismissal, he applied to Fair Work Australia for unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (Act).

Submissions by the Applicant

During the arbitration proceedings, the Applicant gave sworn evidence and submitted a witness statement which stated, among other things, that:

  • his wife and his daughter had set up his Facebook account;
  • he thought that Facebook was a place where he could privately interact with a group of people who he had accepted as Facebook ‘friends’;
  • he was told by his wife and his daughter that they set up his account with full privacy restrictions and that to his knowledge, nothing he said or did could be seen by anyone but the people he had invited to be his Facebook ‘friends’;
  • he was not sure how one (1) of his managers was able to access his Facebook account as he did not, nor did his wife or his daughter change his privacy settings; and
  • he was not aware of any Company policy regarding Facebook, other than a general direction that it should not be accessed during work time (as opposed to breaks).

Submissions by the Company

The submissions made on behalf of the Company argued that the derogatory comments breached:

(a) the implied terms of the Applicant’s contract of employment, which provided that he:

  • act with good faith and fidelity;
  • had breached the required obligation of trust and confidence;
  • promote his employer’s business interests; and
  • not take any action that would damage his employer;

(b) the Company’s Workplace Diversity policy; and

(c) clause 6.1 of the Equal Opportunity and Diversity statement contained in the Linfox Red Book Induction, which was provided at the Company’s induction program, which the Applicant had participated in.

Decision

Commissioner Roberts concluded and found that:

  • at the time of the Applicant’s dismissal, the Company did not have any policy relating to the use of social media by its employees;
  • even by the time of the hearing, it still did not have such a policy;
  • the Company relied on its induction training and relevant handbook to ground its action against the Applicant; and
  • in the current electronic age, this was not sufficient, as many large companies have published detailed social media policies and have taken pains to acquaint their employees with those policies.  Whereas, the Company did not.

Consequently, it was held that:

  • there was no valid reason for the termination, as the Applicant was not guilty of serious misconduct; and
  • the termination of the Applicant’s employment by the Company was harsh, unjust and unreasonable.

Therefore the Company was ordered to:

  • reinstate the Applicant to his former position, with full continuity of employment; and
  • compensate the Applicant.

This case should be a reminder to all employers that social media policies should not be seen as luxuries but as necessities.  Comprehensive social media policies not only set guidelines for the online conduct of employees during and after work hours but they may protect an employer against unfair dismissal claims.

Further information

Dundas Lawyers has advised various organisations on issues associated with social media law.  To ascertain how Dundas Lawyers can assist you in implementing a social media policy, contact us for a confidential and obligation-free discussion:

Doyles Recommended TMT Lawyer 2024

Related insights about technology law

  • Federal parliament passes cyber security laws

    Federal parliament passes cyber security laws

    On 25 November 2024, the Australian Parliament passed a suite of legislation, collectively referred to by the Australian Government as the Cyber Security Legislative Package 2024.  The purported impetus for this legislation was a series of high-profile data breaches in 2022 and 2023.

    Read more …

  • Domain name disputes – a summary of the process

    Domain name disputes – a summary of the process

    A domain name is a string of text that maps to an alphanumeric IP address, enabling users to access websites through client-side software.[1]  Domains can be valuable business assets, and they frequently become the subject of disputes regarding the legitimacy of their registration among organisations with competing rights.

    Read more …

  • New OAIC guidance on Artificial Intelligence

    New OAIC guidance on Artificial Intelligence

    On 21 October 2024, the Office of the Australian Information Commissioner (OAIC) published two (2) new guides on artificial intelligence (AI), purportedly in effort to make privacy compliance easier for business.

    Read more …

  • Artificial Intelligence defined – why no uniform approach?

    Artificial Intelligence defined – why no uniform approach?

    Artificial Intelligence (AI) is commonly thought of as the capacity of computer systems to execute tasks that usually need human intelligence, such as learning, reasoning, and making decisions.[1]  It covers a range of specialised fields, each focusing on different functions.  For example, machine learning allows computers to learn from data, computer vision enables them to…

    Read more …

  • New USPTO guidelines on AI assisted inventions

    New USPTO guidelines on AI assisted inventions

    In response to the Biden administration’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence on 30 October 2023, which outlined policies and principles to promote responsible Artificial Intelligence innovation and competition, the United States Patent and Trademark Office (USPTO) issued inventorship guidance for artificial intelligence (AI) assisted inventions.  These…

    Read more …

  • Software developer obtains Court order – names behind IP addresses

    Software developer obtains Court order – names behind IP addresses

    Justice Burley of the Federal Court of Australia in the case of Siemens Industry Software Inc v Telstra Corporation Limited [2020] FCA 901 ordered that Telstra, within fourteen (14) days, provide to Siemens all documents in its control relating to the identity of certain Telstra Account holders.  Those account holders were suspected by Siemens of…

    Read more …

  • The Digital ID Bill 2023 (Cth)

    The Digital ID Bill 2023 (Cth)

    On 30 November 2023, the Digital ID Bill 2023 (Cth) and the Digital ID (Transitional and Consequential Provisions) Bill 2023 (Digital ID Bills) were introduced in the Australian Senate.  Digital IDs are designed to provide individuals with a convenient way to verify their identity when completing certain online transactions and dealing with government and certain…

    Read more …

  • What are adequate cyber security measures?

    What are adequate cyber security measures?

    The adequacy of cyber security measures was considered in the case of Australian Securities and Investments Commission v RI Advice Group Pty Ltd [2022] FCA 496 (ASIC v Ri Advice Group).  One of the issues raised was whether the respondent had adequate cyber security and cyber resilience in place across its network of financial advisors. …

    Read more …

  • National Classification Scheme – proposed federal reforms

    National Classification Scheme – proposed federal reforms

    Albanese Government announces intention to reform National Classification Scheme, proposing R18+ for games simulating gambling and M for computer games with paid loot boxes/in-game purchases linked to chance. Learn more about proposed reforms and if simulated gambling needs to be addressed.

    Read more …

Send this to a friend