The growth of social media creates problems for both employers and employees alike. The lines between what happens inside and outside work have become blurred especially now that so much work happens outside the confines of the four walls that used to be well defined as the ‘workplace’.
Fair Work Australia, in a recent case, upheld the decision of the employer to dismiss a retail worker for his Facebook rant. The worker was employed by a large retail store and was paid by commission. He was allegedly not paid properly on three occasions. The first two occasions the problem was rectified.
On the third occasion however the problem had not been rectified so the worker jumped onto his Facebook account and his update was along the lines of that his employer was useless and he also said “they are going down tomorrow” which Fair Work Australia took as a threat.
The worker had 70 Facebook friends, 11 of which were work colleagues. Needless to say the employer found out pretty quick smart and took a dim view of the posting. The employer determined that it was a threat against the operations manager and was also a breach of its policies and procedures.
The worker lodged an application with Fair Work Australia claiming that he was unfairly dismissed. Fair Work Australia found that the employer had justifiably dismissed the worker. On the point of Facebook and whether the employee’s argument that it occurred away from work, and whether that had any merit, the member of Fair Work Australia said ‘The fact that the comments were made on the (employee’s) home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before the (employer) was advised of what occurred. As the employer has said, in my view, the separation between home and work is now less pronounced than it once used to be’. Another salient fact in this case was that the employer had a policy dealing with harassment and bullying. Although it would have been preferential for it to also have a policy dealing with Facebook, given the uncontested facts in the matter, it was unnecessary.
At Everingham Solomons we can help you with all such policies and procedures and have packages dealing with all aspects of employment because Helping You is Our Business.
Privacy protection seems to be one of the new sexy terms that pops up in all walks of life. In my experience it seems to be an excuse for somebody or some organisation not providing information requested, but perhaps I am just a cynic.
A recent matter involved a lady, who we will call Jane. Jane was struck by a motor car and completed a claim form. All claim forms just above where it needs to be signed, have an authority allowing ‘relevant’ companies to obtain information. This could allow the insurance company the ability to obtain information from all manner of people including doctors, hospitals, police etc. The claim form and the authority are one and the same document. Although the word relevant has been inserted into more recent authorities such authorities generally disclose a lot of irrelevant information. What one person considers as irrelevant, a lot of other people consider imperative.
Back to Jane. Although having signed the authority, she was most concerned that the insurance company could access all of her private details which were unrelated to the claim and she filed an application with Federal Privacy Commission Office. The Federal Privacy Commissioner’s primary role is to consider complaints. Only very rarely do they make determinations. Up until 2010, in the six years prior, the Federal Privacy Commission had yet to make a determination only assisting in conciliating matters. This would appear to make a mockery of these privacy laws and the so called protection of individuals and has not given Jane any satisfaction.
The other point to note is that even if the Commission did make a determination, it is not binding on either party.
People should also realise that individuals should take others privacy seriously and if an employee breaches another person’s privacy it will often lead to instant dismissal.
A persons privacy is of the utmost importance and although a Federal Privacy Commission might be a good start, it would appear to lack the teeth that can make any real difference. At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.