Author Brad Petley, Principal of Acumen Lawyers, and the By Lawyers employment law specialist.

Social media use by employees has brought many headaches for employers.

Plenty of sobering warnings have been written by the experts.

A social media issue affecting your workplace can happen in an instant – as today’s hypothetical shows.

An employee heckles a golfing superstar then takes to social media

This article is actually based on an incident reported earlier this year when a golf spectator at the Valspar Championship in Florida heckled well known PGA Tour professional Ian Poulter: See Ian Poulter Heckler from Valspar Fired from Job at Florida Southern – Golf.com (17 March 2016).

After the heckling, the spectator took to twitter, boasting:

“…Ian Poulter is making the walk from 12 to 13. I yell ‘you will NOT make the Ryder Cup team!’ Followed by a ‘YOU WILL HIT IT IN THE WATER!’ Ian turns to a rules official and asks that my friend and I be removed from the premises. We talk to the cops, rules official and they ask us to wait until Ian moves on to the next hole and we could return to the Hooters tent. Ian hit his tee shot on the the (sic) par 3 into the water, thins (sic) we got kicked out, and we’re still boozing! I’m swimming circles in Ian Poutler’s (sic) brain and might (probably) kept him off the Ryder Cup Team..LETS GO!”

Unfortunately for the spectator, he got more than he bargained for when his tweet came to the attention of Poulter.

Poulter tweeted back and at the same time tagging the twitter accounts of the spectator’s employer:

“I’m sure @FSC_Athletics & @FscSports are really proud of your professionalism. I wish you the very best Ian”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Events then took an unfortunate turn for the heckling tweeter as within days his employer (in response to media enquiries) issued this blunt statement:

“He’s no longer employed at the institution.”

So, let’s apply the circumstances of the heckling spectator story as a hypothetical under Australian workplace laws – could you take disciplinary action?

What if it happened in Australia?

The starting point is to bear in mind that the hypothetical employee’s conduct occurred outside of working hours so it may be genuine private activity (no matter how distasteful) with no connection to the employment.

In certain circumstances an employee’s out of work activities (including social media activity) may breach an implied or explicit term of their employment contract thus permitting disciplinary action.

As to the out-of-hours conduct that would justify dismissal, the courts have said:

• An employee may be validly dismissed because of out of hours conduct – BUT that conduct must be such that:
• it is likely to cause serious damage to the employment relationship; or
• the conduct damages the employer’s interests; or
• the conduct is incompatible with the employee’s duty as an employee.
• In the absence of such considerations an employer has no right to control or regulate an employee’s out of hours conduct.

See Rose v Telstra Corporation Limited Print Q9292 [1998] AIRC 1592 (4 December 1998)

Could disciplinary action be taken against our hypothetical employee?

It is fair to say that the employee’s conduct raises serious issues about his continuing employment.

However, today’s hypothetical cannot cover all of the issues and arguments that could be put forward in an unfair dismissal case.

Cases will always turn on their individual facts.

What are some of the key facts and issues?

Remember – in our hypothetical the adverse publicity risk is high and the employee is identified on social media as an employee of your organisation.

The out-of-hours behaviour is given wide public exposure by the heckled golfer (who has more than 2 million followers) in his twitter retort and making your organisation’s identity clear by tagging its twitter account name.

There’s the issue of the impact on your organisation’s interests by the employee’s conduct.

You would need to consider the following factors:

• • What is the potential impact of adverse publicity?
  • Could the employee’s actions harm relationships between your organisation and its clients, suppliers or sponsors?
  • Could commercial arrangements with those parties be cancelled as a result?
  • Could there be an impact on the organisation’s ability to source new customers, clients or sponsors?

By engaging publicly in disruptive, hooligan-like behaviour at an international sporting event, our hypothetical employee would certainly raise questions as to whether his actions had damaged the relationship of trust and confidence.

The courts have recognised when it comes to the relationship of employer/ employee:

1. trust and confidence is a necessary ingredient and
2. there must be sufficient trust to make the employment relationship viable and productive: See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. A common question explored by our industrial relations tribunals in unfair dismissal cases about misconduct is about whether the relationship trust and confidence was irreparably damaged by the employee’s actions.

Relevant to trust concerns would be the employee’s boastful statements on social media about his antisocial behaviour.

The impact would become more grave if the employee held a senior position of greater trust such as a management or supervisory role.

Takeaway points

• • In certain circumstances an employee’s out-of-work conduct can justify disciplinary action (including dismissal).
  • The courts have issued guidance principles for when such behaviour would justify dismissal.
  • Even if there is a valid reason to dismiss, don’t forget the impact of unfair dismissal laws; fairness principles may impact to make a dismissal harsh, unjust or unreasonable.
  • A social media policy is recommended for all workplaces to aid the prevention of misconduct involving social media.
  • If in doubt as to your rights to discipline an employee, seek advice before acting