Disciplinary action over employee’s social media misuse gets thumbs up by FWC

Despite her dishonest denials over Facebook misuse, an employee found she had nowhere to hide from her employer’s workplace investigation and in her subsequent appeal to the Fair Work Commission[1].
In this article we highlight how a robust social media policy was an essential foundation for an employer’s investigation into social media misuse by an employee.

Background

The employee, an ACT secondary teacher was disciplined by her employer for having connected with a number of students as ‘friends’ on Facebook. This breached both her employer’s Human Resources Directorate and Code of Professional Practice.
Despite the initial HR investigation making a finding that misconduct was committed and recommending her immediate dismissal, the employer’s appointed decision-maker settled on a lesser punishment – reduction in salary and a final warning.
Following an internal appeal where the disciplinary action was upheld, the teacher then applied to the Fair Work Commission (FWC) in a further attempt to have the disciplinary action overturned.

The FWC hearing

During the FWC proceedings, the employee denied that she had engaged in misconduct and argued amongst other things that:

• She was on leave when the employer’s Directorate was circulated and was not aware of its contents
• Her Facebook page had been hacked
• Evidence relied upon by the School had been ‘mocked up’
• She was simply ‘disliked’ by some of her colleagues

Despite her claims, the employee conceded that:

• Contact with students by telephone, email and the like is required to be authorised by the school principal
• Records were required to be kept on file of all such contact
• Communicating with students on Facebook is considered a serious matter
• Having students as friends on Facebook is a breach of the Code of Practice

In support of the employer’s case, an Information Technology security analyst gave evidence about the process of adding Facebook contacts and the unlikelihood of the employee’s account being hacked.
The FWC accepted the IT analyst’s evidence over the employee’s and considered the employee’s suggestion that an unknown person had hacked her Facebook account for the purpose of adding students to her friends’ list without her knowledge as “not credible”

The Decision

The FWC found that the employee’s misconduct had been substantiated and the disciplinary action taken was justified.   The FWC considered the employee had compounded her misconduct by lying to her employer during its workplace investigation, in her statements to the subsequent appeal panel and ultimately in her evidence in the FWC hearing.
In an exercise in understatement perhaps, the FWC suggested the disciplinary penalty “might even be considered lenient” in light of  a  final warning issued to the employee some two years prior and her dishonesty throughout the investigation and subsequent proceedings.

Lessons for Employers

Given the prevalence of social media use by employees it is important that employers spell out their behavioural expectations in clear terms and the potential disciplinary consequences for social media misuse – by way of a well crafted social media workplace policy.
Without such a policy in place, an employer would likely find it much harder to establish that employees actually knew and understood their workplace dos and don’ts when it comes to social media.
Luckily for this employer, its two policies clearly dictating standards of workplace practice ensured that its workplace investigation had a solid foundation from which to work. Conducting a thorough workplace investigation then ensured its findings and disciplinary action withstood two appeals by the employee concerned.