The decision in Pearson v Linfox Australia Pty Ltd [2014]FWC 446 confirms that where an employer’s reputation or the security of its
enterprise are at stake, this is certainly true.
Having learnt its lesson from the
experience with Mr Stutsel, see [2011] FWA 944 and [2012] FWAFB 7097, Linfox
implemented a social media policy and gave its employees training in it.
Mr Pearson was dismissed for his
failure over time to comply with a number of Linfox policies and for refusing
to sign an acknowledgement that he had read and understood the newly
implemented social media policy.
In his evidence at hearing, Mr
Pearson said that he had refused to sign the social media policy because it was
intended to apply out of hours and “Linfox do not pay me or control my life
outside of my working hours, they cannot tell me what to do or say outside of
work, that is basic human rights (sic) on freedom of speech.”
In addressing the social media
policy acknowledgement issue as a valid reason for Mr Pearson’s dismissal,
Commissioner Gregory said that there is little point in having a policy that
prevents employees from damaging their employer’s reputation and releasing
their confidential information at work that leaves them free to do so out of
hours. He accepted that there were many
instances where employers cannot lawfully restrict or regulate employee’s
activities outside work but said that for a social media policy to operate
effectively it had to reach beyond work hours.
So despite what Mr Pearson may have
thought, his freedom of speech and action outside work hours was not absolute.
Commissioner Gregory observed that Linfox
was not actually asking Mr Pearson to abide by the social media policy but only
to acknowledge that he had read and understood it. All the same, Linfox would expect its
employees to abide by the policy and for them to recognise that breach of the
policy can have consequences for ongoing employment.
Mr Pearson does not appear to have
understood this.
In any event, as Mr Pearson had
breached other workplace policies relating to notification of absences,
unauthorised mobile phone usage and safety procedures, it is likely he would
still have been dismissed even if he had not taken a principled, but misguided,
stance on his employer’s social media policy.
So employees are on notice that out
of hours social media use that damages an employer’s reputation or discloses its
confidential information can lead to a dismissal being upheld as valid.
Greg Doran
Director
Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.
Director
Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.
