The document discusses how social media has blurred the lines between work and personal life. While activities on social media outside of work could potentially be subject to disciplinary action, there is no clear rule. Several court cases are examined where employees were dismissed for social media posts. In some cases the dismissals were found to be unfair, but in other cases where the posts clearly damaged the employer's interests or trust in the employment relationship, dismissals were supported. The document advises employees to exercise care when posting anything online related to their work or employers.

1. SOCIAL MEDIA
Presenter: Dahlia Khatab

2. THE SOCIAL NETWORK
 Social Media – refers to Internet sites which allow individuals and
groups to develop content and share information via online net works
of people.
 It is clear that Australians are embracing social media.
 In 2010, the Nilsson company reported that Australians had the
highest global average engaging with social media. On average, they
reported 7 hours per person per month of engagement with social
media.
 i.e Facebook; Twitter; LinkedIn; Instagram; Tango; Whatsapp;
Youtube; Flickr; MySpace; Google+; Yahoo

3. The Expanding Grey Area
What happens when the two are in conflict?
Rights and Interests
of the Employee
Rights and Interests
of the Company
Social media blurs the lines between work life and private life
and between what is public and what is private.
The grey area where these realms meet is expanding.

4. Overview
 Relatively new technology – but age old legal
principles such as –
 Copyright
 Freedom of speech
 Confidentiality
 privacy
 It effects everyone because regardless of just
how connected you are in the social network.
No one is truly detached.

5. Online and Outside Work
 Activities using social media that occur outside the
workplace are not outside the realms of disciplinary action
by the employer.
 Notably, Courts have held that social media interaction is
not private interaction.
 Privacy settings do not provide users legal protection
against employer action.

6. Case Studies:
O’Keefe v Williams Muir’s P/L t/a Troy Williams The Good Guys [2011]
 Disgruntled Good Guys employee updates his Facebook
status as follows –
…Damien O’Keefe wonders how the f ***** work
can be so f****g useless and mess up my pay
again. C***ts are going down tomorrow…

7. Decision: O’Keefe v Williams Muir’s P/L – FWA 2011
 Comments amounted to serious misconduct that
showed complete disrespect and disregard for the
employer.
 The fact that the comments were made on Mr.
O’Keefe’s home computer, out of work hours did not
preclude a finding of misconduct warranting dismissal
 The separation between home and work is now less
pronounced than it once used to be.

8. Case Studies: Linfox Australia Pty Ltd v Glen Stutsel
• Employee had been a truck driver for Linfox Australia for
22 years.
• Comments on Facebook of a racial and sexual nature –
allegedly in relation to two particular supervisors
• Facebook account was public i.e– low/no privacy
restrictions.
• Two questions before the Commission:
• A: was it serious misconduct?
• B: was is harsh unjust and unreasonable?

9. Decision: Linfox Australia Pty Ltd v Glen Stutsel
Linfox Australia v Glen Stutsel - Fair Work Australia held:
 Mr Stutsel was reinstated to his position and compensated for lost
earnings.
BUT …
 “Employees should … exercise considerable care in using social
networking sites in making comments or conducting conversations
about their managers and fellow employees”
 “with communities’ increased use and understanding of Facebook
and the adoption by employers of more social networking policies,
such a factor (namely the employee’s age and claim of limited
understanding of Facebook) may be given less weight in future
cases”

10. The Public Portal to our Private Life

11. Case Study
 Employee of a hair salon dismissed for posting comments
on Facebook page disparaging her employer and her
modest Christmas bonus.
 Employee disputed the fairness of the dismissal arguing
that her status message could only be read by her
Facebook ‘friends’ and that her employer was not identified
Fitzgerald v Dianna Smith T/A Escape Hair Design (U2010/6688)
"Xmas 'bonus' along side a job warning, followed by
no holiday pay!!! Whoooooo! The Hairdressing
Industry rocks man!!! Awesome!!!"

12. Decision
Fitzgerald v Dianna Smith T/A Escape Hair Design (U2010/6688)
 Fair Work Australia found that Facebook posting may have undermined
the strength of the employment relationship, but did not irretrievably
damage the essential trust and confidence between employer and
employee to justify the dismissal.
 In certain circumstances, a Facebook post by an employee may be
sufficient to warrant dismissal. However, this depends on whether the
post will adversely affect the employer's business.

13. Case Study:
Antony Dekort v Johns River Tavern Pty Ltd T/A Blacksmiths Inn Tavern
(U2010/5333)
 Employee applies for sick leave for the two days preceding New Years day
2010.
 Produces a medical certificate dated 4 January 2010.
 Employer dismisses employee after finding photos on Facebook which
show the employee partying on new years eve.

14. Decision:
Antony Dekort v Johns River Tavern Pty Ltd T/A Blacksmiths Inn
Tavern (U2010/5333)
 The employee applied to FWA for an unfair dismissal remedy
however,
 his application was dismissed by Deputy President Harrison as one
which had no reasonable prospect of success.
 In this instance the employer was able to use the prevalence of
social networking sites to their advantage

15. Case Study:
Ms Lee Mayberry v Kijani Investments Pty Ltd ATF The Dawe
Investments Trust Subway Wallsend T/A Subway (2011)
 Employee of Subway franchise dismissed after employer finds photo of her
on Facebook in which employee is in a cardboard car and behind the
Subway service counter.
 Dismissal was deemed unfair by the Fair Work Commission because the
employer did not demonstrate any damage to the business and the
applicant did not post the photograph on Facebook.

16. Case Study:
Bradford Pedley v IPMS Pty Ltd T/A Peckvonhartel [2013]
 Employee architect used his LinkedIn profile to advertise his
private services to a number of recipients including existing
clients of his current employer.
 The email stated that he would take on jobs of any size and at a
lesser cost than a large organisation
 The employer summarily dismissed the employee the following
day.
 The Fair Work Commission sustained the employer’s decision
 The Commsions view was that the Linkedin email was an effort
by the employee to grow his private business and pursue
activities that were not compatible with his duty to an employer.

17. Summary
 Employees need to be mindful of how social media can
affect our working lives.
 Regardless of whether the employer is named on a social
media site or not. When posts relating to work are made
by employees, employers may be able to take action.
 Although there is no concrete checklist for playing it safe,
some people recommend that we use the Nanna Rule.
I.e Ask yourself what would nanna think before posting
frustrations about employers or photos of oneself on
social media.