Is it legal to monitor staff on social media after hours?

Not only can your performance at work be monitored, employers are increasingly turning to social media to monitor their staff’s personal behaviour. But is this legal?

We live in a world ruled by social media, where the line between work life and personal life is increasingly blurred. Public image is an important aspect of a business’ brand and at times, employers may consider whether the brand is compromised due to the out-of-hours conduct of employees.

Social networking and out-of-hours conduct

Fair Work Australia’s decision in Damian O’Keefe v William Muirs Pty Ltd t/as Troy Williams The Good Guys, confirmed the capacity of employers to discipline employees for out-of-hours conduct on social networking sites such as Facebook.

Here, the employee raised a concern about the payment of commissions with his manager and was dissatisfied with the manager’s response. Instead of pursuing the matter at a higher level within the business, the employee decided to vent his frustrations by airing them on Facebook. The offensive comments posted on his Facebook page also went on to threaten a fellow employee at the workplace.Shortly after he was confronted by his area manager about the post, his employment was terminated.

The employee brought an unfair dismissal application in Fair Work Australia, claiming that:

1. There was no link to the comment and his employment.
2. The posts did not mention the employer.
3. His Facebook Page had the maximum privacy settings.
4. The employee only had 11 Facebook friends who were also co-workers.

Fair Work Australia found that the dismissal was not harsh, unjust or unreasonable and the application was dismissed. It found that the employee should have been aware of the consequences of his actions, due to the requirements set out in the Employee Handbook, which contained policies on bullying and harassment. Even in the absence of the handbook, FWA found that such insulting and threatening comments about another employee amounted to conduct sufficient to terminate the employment agreement. Importantly, it was irrelevant that the conduct occurred outside working hours and on a home computer.

DP Swan made the comment that the “separation between home and work is now less pronounced than it used to be” and employers appear to be facing an increasingly difficult task of monitoring employees’ conduct both during and after work hours via social media platforms.

The common trends in case law show that an employer may be capable of terminating an employee for out-of-hours conduct where the conduct:

• Undertaken by the employee, viewed objectively, is likely to cause serious damage to the relationship between the employee and the employer;
• Damages the employer’s legitimate business interests; or
• Is incompatible with the employee’s duties as employees.

In considering whether a dismissal is lawful, employers need to demonstrate a sufficient nexus between the conduct and the employment relationship. Recent examples include:

• The posting of a comment on Facebook about a Christmas bonus, was not seen as detrimental to the business in Sally Ann Fitzgerald v Diana Smith T/A Escape Hair Design. The employer did not raise concerns at the time of posting and the employer wasn’t mentioned.

• The Facebook post in Lukazsewski v Capones Pizzeria Kyneton did not reveal to whom it was directed and had no specific reference to the employee’s employment.

In light of these cases, when managing alleged employee misconduct, employers should:

1. Act quickly if it becomes apparent that conduct has occurred;
2. Abide by Employee Handbooks/Policies, which may include investigating the matter.  Be careful not to draw conclusions first.
3. Consider whether there is the requisite connection between the conduct and the employment relationship.
4. Take into account all the circumstances if dismissal is to occur including previous disciplinary/performance issues, length of employment, reasons given, policies and procedures.

Summary dismissal for ‘serious conduct’ 

FWA in John Pinawin t/as RoseVi.Hair.Face.Body v Edwin Domingo, accepted that the summary dismissal of a hairdresser whose work performance was adversely affected by his drug use was fair, but warned the same conclusion would not necessarily be reached in all cases of out-of-hours misconduct.

The employer raised concerns with the employee regarding his unprofessional appearance and behavioural issues on several occasions in the past, but the incident came to a head in May 2011, when Domingo showed up at his employer’s home in the early hours of the morning, claiming that someone had poisoned him and that his apartment had been set alight, however, there was no evidence of fire. It was later discovered that he had been using drugs over an extended period of time. He was subsequently terminated and brought a claim for unfair dismissal.

The Full Bench concluded that the termination of employment was not unfair dismissal because it was consistent with the Small Business Fair Dismissal Code, the guidelines set for small businesses under the Fair Work Act. The relevant paragraph in the Code allows summary dismissal for serious misconduct including ‘theft, fraud, violence and serious breaches of OHS procedures’, his conduct falling within the category of a serious breach of OHS procedure.

The Bench noted that although employers do not have the right to control or regulate an employee’s out-of-hours conduct, where the employee’s conduct outside the workplace has a ‘significant and adverse effect’ on the workplace, then the consequences become a legitimate concern of the employer. In this case, there were legitimate concerns about the impact of Domingo’s drug use on their business, including tardiness and unreliability of the employee and the OHS implications of his erratic behaviour.

While the Full Bench stressed that its determination should not be seen as one that would necessarily be reached in all cases, the case does demonstrate that employees may in some cases be justifiably dismissed for their out-of-hours conduct.

Employers who wish to invoke the relevant provision of the Code should ensure they carry out reasonable investigation into the employee’s misconduct, including having discussions with the employee and paying regard to his/her explanations and views.

Guidelines for employers

The cases provided a guideline for employers when dealing with such issues:

• Review existing contracts and policies and procedures to ensure that policies are in place concerning the conduct of employees while they are in uniform or travelling for a work-related purpose. The importance of the policies should be clearly impressed on employees, and the consequences for breaching a policy should be emphasised.

• When considering whether to discipline an employee for out-of-hours conduct, employers should consider whether the conduct could reasonably be expected to damage their reputation, or otherwise expose the business to liability and in doing so, carry out a full investigation noting any explanation or view of the employee. For small businesses, follow the Small Business Fair Dismissal Code.

This article only scratches the surface of these matters, but every employer should spend the time reviewing their relevant policies and impressing on employees the importance of the issue.