SOCIAL media has many benefits for the hospitality industry, from promoting the business to recruiting new staff. Clients and employees can now ‘like’ or ‘check in’ to a restaurant and customers can leave reviews via their smart phone while enjoying their meal. Employees at cafes and restaurants often use social media at or outside of work. Disgruntled employees now commonly publish through social media websites their negative and sometimes harmful opinions about their employer. How do you know what is acceptable and when do they cross the line?
Spending excessive time on social media at work can be grounds for disciplinary action if the appropriate policies are in place and regularly enforced and if the employer can prove that the social media use was excessive and during work hours. But behaviour outside working hours may also impact employment if it breaches an express term of an employee’s employment contract. An employer may have reasonable grounds for disciplinary action if an employee posts comments on social media that may, for example, harm the company’s reputation, harass or bully colleagues, or breach confidentiality policies.
In one recent case before the Fair Work Australia Tribunal an employee made comments on his Facebook page about not being paid correctly. He did not mention where he was employed, but he did make a comment about how another employee will be “going down tomorrow”. He had several colleagues on his Facebook page which interpreted this as a threat and advised the employer. The employee was dismissed on grounds of serious misconduct. He applied for Unfair Dismissal. The business had several relevant policies in place, including a Code of Conduct policy stating that employees should communicate politely with colleagues and not use offensive language. The employer also had bullying and harassment policies in place. The court found the employee’s behaviour was taken to constitute serious misconduct and the application was dismissed. The fact that the comments were made out of work on a home computer did not make any difference.
In another case an employee wrote negative comments about her employer on her Facebook page. However in this case, it was not found that the comments would have been damaging to the employer’s business and her dismissal was considered unfair. This employee was financially compensated for the dismissal.
The Tribunal has also examined a case where an employee was dismissed for making a cardboard car from company resources at work. The employer received an anonymous email with the image of the cardboard car as it was posted on Facebook. The employee was summarily dismissed for theft (as the car had unused plastic cups as headlights, which were alleged to be a waste of resources), damaging the company name, and occupational health and safety issues. A supervisor was present on the day the cardboard car was created and did not issue a warning at the time. The dismissal was found to be unfair and not grounds for summarily dismissal. It would have been grounds for a formal warning letter only. The former employee was compensated accordingly.
These examples show that courts will look at the individual circumstances of each case before making a decision. If an employee has used social media inappropriately, it is still important for the employer to offer procedural fairness by following proper processes for disciplinary proceedings, including termination. It is a good idea to seek professional advice before dismissing an employee.
Social media risks can be managed by developing and enforcing workplace policies that encourage the appropriate use of social media. These policies need to make clear that harassment, bullying or disparaging comments will not be tolerated. Employers should create specific Social Media policies or update existing Code of Conduct policies to include inappropriate behaviour in social media.
In cases where performance isn’t found to be serious misconduct, employers should provide a formal warning letter detailing the consequences of their continuous behaviour – for example that repetition or continuation of this particular behaviour will result in termination. The letter should also set out how they can improve and also provide them with a time period to improve. It’s also important to be consistent with all employees and act on all inappropriate behaviour and potential breaches of company policy promptly.
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