One Man's Meat Is Another Man's Poison

By Alan J. McDonald

Have you ever thought twice before you posted something on Facebook, out of fear that your account might not be as private as you would like to believe? Well maybe you should.

Social media has not just invaded our own lives; it has opened the door for employers to regulate our behaviour in our personal lives through policies on social media use.

In Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, Mr Stutsel was fired after he posted comments on his Facebook page that Linfox alleged were “extremely derogatory” with some amounting to “sexual discrimination and harassment.”

A single commissioner of the Fair Work Commission(FWC) found that although the comments were in “poor taste” and were “disgusting”, there was no valid reason for the dismissal which was harsh, unjust and unreasonable. This was because Linfox did not have a social media policy, and because Mr Stutsel mistakenly believed that his account was private and that he could not delete the inappropriate comments of other users.

The Full Bench of the FWC agreed that the comments were inappropriate but confirmed that terminating his employment was unfair. This was then confirmed on appeal to the Full Court of the Federal Court.

Soon after this decision Linfox introduced a social media policy for their employees. The policy was directed at social media use both inside and outside of working hours. This had unfavourable consequences for one staff member, Mr Pearson, who was dismissed when he refused to sign the policy.

So what happens when there is a social media policy?

In the case of Pearson v Linfox Australia Pty Ltd [2014] FWC 446 the FWC actually upheld the dismissal of Mr Pearson after he failed to follow a number of policies, including refusing to sign Linfox’s new social media policy.

The policy was aimed at the use of social media not just in working hours but also outside of work; hours that we used to call our ‘private life.’ But according to Commissioner Gregory said “gone is the time … where employees might claim posts on social media are intended for private consumption only.” Do you agree?

So why does the existence of a social media policy mean that a man who does not offend anyone but merely refuses to sign the policy loses his job when a man who deeply offends his colleagues, gets to keep his job?

In upholding the dismissal, Commissioner Gregory outlined that the policy did not commit Mr Pearson to abide by it, it just required him to acknowledge that he had read and understood it. The Commissioner also said that it was the combination of breaches of policies, not each breach in isolation, which provided a valid reason for dismissal.

So why did the FWC find in favour of Mr Stutsel but not in favour of Mr Pearson? What happened to our freedom?

In Mr Stutsel’s case the FWC was influenced by the lack of a social media policy, but in Mr Pearson’s case, the use of a social media policy contributed to Commissioner Gregory’s decision to uphold his dismissal.

Should an employer be allowed to have a social media policy?

Commissioner Gregory said that the social media policy is a legitimate way for a business to protect its reputation and security, and that it makes clear to employees what is expected of them. He was not concerned that the policy appeared to intrude on the freedoms and private lives of employees as he felt that an effective social media policy could not operate only at work because it would be contradictory to prohibit behaviour at work and then allow it once an employee left the office.

So where is our freedom? What happened to the idea of our private life existing outside of working hours?

It appears that the FWC is sympathetic to businesses trying to protect their reputation through a social media policy. This means that past ideas of rights to privacy in our personal lives need to be forgotten and we will have to think twice about what we post on any social media website.

There are still a number of questions that are surely to be addressed as cases like these increase in volume. For example, what are the consequences of breaching a social media policy, or of posting comments on an account with the highest privacy settings?