Can you remember the “olden” days? Before Facebook? Instagram? Twitter? Snapchat? Do you remember how simple those days were when an employer could ‘tar and feather’ anyone caught standing around the water cooler bagging their work, their boss, or their organisation?  

These days, the channels of communication for employees to share their discontent are endless. And it’s out there – beyond the walls of the office or the IT server. It’s etched in instant updates on employees’ social media news feeds. If an employee has a great Klout score, then the damage to an employer’s brand has disastrous potential – even if it’s about an online tit for tat over a stolen sandwich from the office fridge.

In the employment law space, social media is fraught with complication because the social media “square peg” does not always fit nice and neatly into the legislative “round hole”.

A blurred line exists between an employee’s freedom of expression and right to privacy and any outside hours conduct and comments that undermine trust and confidence or an employer’s corporate reputation.

This begs the question – does Big Brother need to become Bigger Brother to contain the rhetoric fed into the ether? The band-aid solution, given the general lack of speed at which legislation and case precedent progresses, is in the affirmative.

You may have heard that story about the bloke who over-imbibed one evening and then bragged to his mates on Facebook about how he was going to take a sickie. Given his inebriation, he forgot that he was a Facebook “friend” with his boss who saw the post. His work friends never saw him again.

True story. The moral is that employers are feeling more empowered in this digital age and are getting their own back.

Social media slap

The past couple of years have seen a number of cases test the boundaries of how and when employees’ social media activity can be used by an employer to justify disciplinary action. The outcomes of some of these cases give useful guidance for HR.

Real life case examples where courts or tribunals backed employers who fired disgruntled employees for inappropriate activity on social media have included:

• Calling clients “spastics” and “whingeing junkies” on Facebook;
• Disclosing information about an employer’s internal systems and processes on Facebook and then topping it off by calling the employer “utterly disgraceful”; and
• Displaying contempt for a colleague in the office, and “defriending” them on Facebook.

Other examples where the courts or tribunals did not agree with the employers’ disciplinary action include:

• “Liking” complaints made by customers on Facebook;
• Complaining about poor treatment at work;
• Making sarcastic remarks on Facebook such as “Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whooo! The Hairdressing Industry Rocks man!! Awesome!!!”

So, why do the courts seem to support some disciplinary action by employers, but not others?  Looking at these cases it seems there are four key things that HR should consider before pulling the trigger. Make sure that the behaviour for which you are disciplining your employee:

• Relates to their actual work;
• Shows an actual intention to damage the organisation’s reputation;
• Damages the brand or that of others at your organisation in a way that is tangible; and/or
• Is in breach of a written social media policy.

Big Brother is certainly becoming Bigger Brother, and not just because employers are stumbling across these gems in their home time and acting upon them.

You have probably heard of the many minions employed by top ASX listed companies in their social media command centres. These customer communications officers spend their time monitoring and responding to disparaging remarks and complaints by consumers about a product or lack of service. It’s not a bridge too far to imagine that this may well become the next wave of human resources advisor.