Newshound
05-11-2012, 10:36 AM
Earlier in 2012 FWA ordered the reinstatement of an employee (Mr Stutsel) who had been sacked by Linfox after posting comments about two employees on his Facebook page which Linfox considered offensive and discriminatory.
Linfox's appeal to have the decision overturned was recently heard by the FWA Full Bench but the original FWA decision was upheld.
The following reasons were given for upholding the original decision to reinstate Mr Stutsel;
Mr Stutsel's limited understanding of the privacy (or otherwise) of Facebook communications;
Mr Stutsel's long and satisfactory employment history, over a 22 year period;
the fact that some of the more serious statements complained of on the Facebook page were not made by Mr Stutsel but by his Facebook friends (including fellow employees) and that he did not know that he could delete these comments;
Linfox's differential treatment of Mr Stutsel, given that it did not take action against other employees who took part in the Facebook conversations; and
Mr Stutsel's genuine remorse over what happened.
The FWA Full Bench also said;
"unlike conversations in a pub or café, Facebook conversations leave a permanent written record of statements and comments made by participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees."
and significantly, in relation to the reasons for upholding the decision;
"with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of these factors may be given less weight in future cases. The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future."
This highlights the importance of employers creating detailed social media policies and ensuring that employees understand these policies, particularly in relation to their use of social media in their own time, but in connection to the workplace.
The social media policy should clearly set out what the employer would consider unacceptable use of social media when connected with the workplace, and the consequences of such unacceptable social media use by the employee.
Linfox's appeal to have the decision overturned was recently heard by the FWA Full Bench but the original FWA decision was upheld.
The following reasons were given for upholding the original decision to reinstate Mr Stutsel;
Mr Stutsel's limited understanding of the privacy (or otherwise) of Facebook communications;
Mr Stutsel's long and satisfactory employment history, over a 22 year period;
the fact that some of the more serious statements complained of on the Facebook page were not made by Mr Stutsel but by his Facebook friends (including fellow employees) and that he did not know that he could delete these comments;
Linfox's differential treatment of Mr Stutsel, given that it did not take action against other employees who took part in the Facebook conversations; and
Mr Stutsel's genuine remorse over what happened.
The FWA Full Bench also said;
"unlike conversations in a pub or café, Facebook conversations leave a permanent written record of statements and comments made by participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees."
and significantly, in relation to the reasons for upholding the decision;
"with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of these factors may be given less weight in future cases. The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future."
This highlights the importance of employers creating detailed social media policies and ensuring that employees understand these policies, particularly in relation to their use of social media in their own time, but in connection to the workplace.
The social media policy should clearly set out what the employer would consider unacceptable use of social media when connected with the workplace, and the consequences of such unacceptable social media use by the employee.