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Can an employer intervene in an employee’s use of social media outside work?
A recent decision by the Fair Work Commission has shed some light on this question showing that having a detailed workplace policy can provide better protection for your company from damaging posts made by employees. Further, the decision has shown that employees need to think carefully before they comment online.
The recent decision of Waters v Mt Arthur Coal Pty Limited concerned a dispute between an employee, Mr Waters, and his employer, the Mt Arthur open cut coal mine in the Hunter Valley. In the lead up to Christmas 2017, the coal mine was considering whether it would operate on Christmas and Boxing Day due to safety concerns arising from low staff numbers. It was announced two days before Christmas that operations would continue over these days.
Following this decision, an Industrial Safety and Health Representative issued a direction to suspend mining operation over the Christmas period due to the reduced emergency evacuation capacity. Mt Arthur received this direction but decided not to comply with it, and considered the safety risk not to be a real concern.
Mr Waters was a health and safety representative at the mine, and after receiving the safety direction he posted a Facebook status saying ‘Xmas & Boxing day shifts are off for good.’ Mr Waters was not aware this status was incorrect, and assumed the mine would comply with the safety direction. When Mr Waters confirmed with other staff members that the status was incorrect, he deleted it.
Mt Arthur terminated Mr Waters’ employment for being in contravention of a range of their workplace policies including the ‘distribution of material that is likely to cause annoyance, inconvenience or needless anxiety to your colleagues’.
The Fair Work Commission found that the Facebook post was a valid reason for dismissal. They found that the post had a relevant connection to Mr Waters’ employment, was used to communicate operational matters with other employees and was likely to damage Mt Arthur’s interests in operating the mine. The post was ultimately found to be incompatible with Mr Waters’ obligations to comply with workplace policies.
The case provides a timely reminder for employees to be extremely careful with what they post on social media, especially if it relates to their work. It also highlights how important comprehensive workplace policies are for employers. However, employers must be conscious of identifying a connection between the social media post and employment before intervening with an employee’s use of social media use outside work hours.