By Amber Wood, People & Culture Strategies

Three recent high profile incidents regarding the inappropriate use of Facebook, Twitter and YouTube provide a timely reminder for employers to reconsider the impact of social media in the workplace.

The recent incidents all occurred outside of work hours and resulted in disciplinary action by employers and sponsors in each of the following cases:

• Olympic swimmer Stephanie Rice lost at least one sponsorship deal and may have suffered immeasurable damage to her reputation following a controversial twitter post which was derogatory to homosexuals;
• the editor of a regional newspaper was stood down by Fairfax Newspapers after posting comments on his Facebook page stating that the recent death of Constable Bill Crews would ‘lift circulation’; and
• a lawyer employed by a Queensland University was investigated after posting a YouTube clip of himself burning and smoking pages from the Bible and Koran.

Despite frequent media coverage of such cases, most employers are still without any social media policy and are adopting a ‘wait and see’ approach to the use of social media by employees during and outside of work hours.

To help manage reputational risk and to harness the many potential benefits of social media to your organisation’s advantage, a proactive approach is recommended.

Your key actions

1. Consider your organisation’s current online presence and the ways in which your employees use social media in and outside of the workplace.
2. Assess what steps your organisation has taken to minimise potential issues arising from use of social media by customers and employees. For instance, how would your company respond if faced with a scenario similar to any of the cases above?
3. Review any social media policies currently in place and consider whether employees are familiar with the policies.
4. Implement a thorough social media policy which complements any broader social media or online marketing strategies in place.

This article was first published in Strateg-Eyes: Workplace Perspectives a publication from People & Culture Strategies: www.peopleculture.com.au

Some of the most talked about new provisions in the Fair Work Act 2009 (Cth) (FW Act) are the “workplace rights” protections. It is hoped that these provisions will protect employees from any adverse action of their employer against their workplace rights, says James Mattson, executive lawyer for Bartier Perry.

We have learnt in the first year since the commencement of the FW Act that the workplace rights provisions can provide a potent strike against employer action but the law has yet to take any large, radical steps that interfere with an employer’s ability to take legitimate and lawful action.

What is a workplace right?

The FW Act says a person has a workplace right if a person is:

• entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body, or
• able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument, or
• able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or is able to make a complaint or inquiry in relation to his or her employment.

What can’t an employer do?

An employer cannot take adverse action (that is, any detrimental action) against an employee or prospective employee for the reason of, or for reasons including that:

• an employee has a workplace right; or has, or has not, exercised a workplace right; or proposes or proposes not to, exercise a workplace right, or
• to prevent the exercise of a workplace right by the other person.

The potent strike

An employee can, on an urgent basis, approach the court to seek an injunction restraining an employer from taking adverse action before that action is taken. This quick relief has the potential to delay or thwart employer action. That is what occurred in Jones v Queensland Tertiary Admissions Centre [2009] FCA 1382 and [2010] FCA 399.

Ms Jones was the CEO of Queensland Tertiary Admissions Centre (QTAC), which was negotiating with the union for a new enterprise agreement. Ms Jones was taking tough negotiation positions on behalf of QTAC. The union lodged a complaint against Ms Jones for bullying employees. Queensland Tertiary Admissions Centre, to comply with its legal obligations, commenced an investigation of the allegations. Ms Jones was asked to respond to the accusations.

Ms Jones obtained an injunction restraining QTAC from proceeding with its investigation. Ms Jones was able to argue that QTAC may be taking adverse action against her because of her role as a bargaining representative of QTAC. Queensland Tertiary Admissions Centre was ordered not to take any action against Ms Jones until after a final hearing, some months later.

What was interesting about the interlocutory judgment is that it confirmed the breadth of what is a workplace right despite the judge saying QTAC had powerful and persuasive arguments that Ms Jones as the CEO was not a bargaining representative of QTAC. Further, the court held that an investigation itself was capable of constituting adverse action even though no adverse decision had been made by QTAC against Ms Jones; her position was, by virtue of the investigation, altered to her prejudice.

Ultimately, five months later and after a full hearing, the court found that QTAC was legitimately investigating the bullying complaints and had an obligation to do so. Queensland Tertiary Admissions Centre was not acting for any unlawful reason connected with Ms Jones’ role in the bargaining process. The investigation was allowed to continue.

Being merciful is not adverse action

Arnotts had implemented a new safety system which two of its employees, recently trained in the system, ignored. Arnotts was considering dismissal. But rather than dismiss the employees, Arnotts offered them leave without pay for a month in lieu of dismissal. The employees accepted but reserved their right to challenge the decision (LHMU v Arnotts Biscuits Limited [2010] FCA 770).

The employees alleged they were entitled to the benefit of the FW Act and their industrial instrument which made no provision for suspension without pay. They argued they were entitled to work and pay.

The court accepted that the employees had workplace rights. However, employees and employers were at liberty to agree to vary the terms of their employment contract. The making of the offer for leave without pay was merciful and not adverse action. Faced with dismissal, the offer of leave without pay was free to be accepted by the employees. The action taken by Arnotts was not because of the employees’ workplace rights but rather to be merciful in circumstances where it could have legitimately terminated their employment.

Conclusion

The workplace rights provisions are expansive and extend to almost any detrimental action taken by an employer. There is the potential for employees to have swift resort to these provisions to prevent any adverse action in their employment.

Employers are advised to carefully consider any potentially adverse decisions made in employment and clearly articulate and record the legitimate reasons for such decisions. Only then will employers be in a position to resist an urgent application to restrain their actions.

Ultimately, employers who act lawfully and legitimately will be able to implement employment decisions properly made. The adverse action provisions may create a bump in the process but to date the courts have adopted a realistic common sense approach to the application and interpretation of these new provisions.

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

About the firm

Bartier Perry is a highly reputable mid tier Sydney CBD law firm. With nearly 60 years of operations behind it, the firm holds a secure position in the Sydney legal market enjoying a strong collegiate and stable structure. Their business success is founded on the ability to build and maintain enduring commercial relationships with clients. Bartier Perry’s services are retained by major corporations who recognise the firm’s expertise in select practice areas across the broad middle ground of legal service requirements. They deliver highly competitive legal services in the following practice areas: commercial, financial services, estates, property, land & environment, business succession, workplace relations, taxation and insurance litigation.