Here at Workwise we hammer the point about having sound, documented policy and procedure in place regardless of the size of your workplace. These documents are the ‘tools’ of management and are vital in helping to establish and support the ‘culture’ of the workplace. The below article from Moray and Agnew Lawyers appeared recently in ‘Employment Law Matters’ and is appended for your reading. It contains some insight into how the Commission deals with policy related matters including the increasing importance of Social Media Policy.
The Fair Work Commission has recently considered the scope of social media policies and the ability of employees to make work-related posts on social media. In a recent unfair dismissal decision, an employee was found to have been fairly dismissed despite the employee claiming that the social media policies infringed his freedom of speech and refusing to sign that he had undergone social media training.
The employer was able to rely on the employee’s consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with its policies and procedures.
Malcolm Pearson was a warehouse worker for Linfox Australia Pty Ltd and had been employed since January 2007.Mr Pearson complained that Linfox was not entitled to constrain him by its social media policy, and after attending social media training refused to sign that he read and understood the policy. Mr Pearson claimed that because Linfox did not pay him or control his life outside of his working hours, ‘they cannot tell me what to do or say outside work, that is basic human rights on freedom of speech.’
Mr Pearson was unrepresented in both his unfair dismissal hearing and the appeal. Linfox terminated Mr Pearson’s employment because Mr Pearson had demonstrated a ‘consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with policies and procedures.’ This included repeated failure to notify management of absences from work, continued use of his mobile phone during working hours, unsafely loading trailers, ignoring exclusion zones, and refusing to sign an acceptance of the social media policy.
Mr Pearson had been warned of these failures and the policy requirements of Linfox.
Fair Work Commission decisions
The basis upon which Linfox terminated Mr Pearson’s employment was accepted by Commissioner Gregory. Overall Mr Pearson’s conduct in aggregate justified the dismissal. Commissioner Gregory observed that the establishment of a social media policy was a ‘legitimate exercise in acting to protect the reputation and security of a business.’ Further, Linfox acted lawfully and reasonably in requesting Mr Pearson to acknowledge the social medial policy, and it was entitled to require him to do so. Commissioner Gregory provided a warning to both employees and employers that:
‘Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees.’
Commissioner Gregory noted that, in another unrelated unfair dismissal proceeding, Linfox had previously been criticised for failing to have a social media policy.
The Full Bench of the Fair Work Commission on appeal by Mr Pearson confirmed the decision of Commissioner Gregory, and refused leave to appeal.
Lessons for employers
This decision serves as a timely reminder to employers to have sufficiently robust social media policies in place, and to ensure that training in relation to such policies is timely, accurate and clearly understood by employees.
Employers are reminded to closely monitor employee behaviour particularly when such behaviour is prohibited by policies and procedures.
Call us to discuss your current policy and procedures and carefully consider the introduction of a coherent Social Medial Policy if you don’t yet have one.
If you have seen our recent Facebook post, then you will know who has just been voted Australia’s Best Places to Work, but if you haven’t been onto Facebook and/or Liked our Facebook page, then Why Not?
No really, for those who don’t have or use Facebook, then here’s the latest news.
The best places to work in Australia, as published by the Business Review Weekly are:
100+ employees: Atlassian
-100 employees: The Physio Co
This is the result according to the annual survey conducted by “Great Place To Work Australia” ® in which 28,000 workers were surveyed. It’s so interesting to find out what employers are doing that makes them such great places to work. If you would like a few ideas for your workplace, then we recommend you take a look at the Atlassian web site and click on their Careers tab, or just click the following link: https://www.atlassian.com/company/careers.
For those of with fewer than 100 employees, then The Physio Co may be your inspiration. Check out their website and have a look at their downloadable Culture handbook. The Physio Co has actively been working on becoming the best place to work in Australia for the past 5 years. Each year they have come closer and closer and now they have done it. Their CEO Tristan White publishes a daily blog entitled “Culture is Everything” which may provide you with some inspiration and insight.
Happy researching, and if you find something that works for your workplace, then we’d love to hear about it; perhaps you could send us a message through Facebook!