09 December 2015

When is out of hours misconduct cause for dismissal?

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Recently there has been considerable media attention paid to an incident between a Fairfax Media columnist, Clementine Ford, and former Meriton Group employee Michael Nolan. The Sydney hotel supervisor lost his job after Ford reported the abusive comments made on her Facebook page to the man’s employer.

“For too long, speech on the internet has been consequence free,” said Ford in a column following the attention the story received.

After being alerted to the offensive comments by Ford, Meriton Group issued public statement:

"Meriton Group does not condone this type of behaviour. Michael Nolan was removed from the Meriton site on Saturday 28th November pending an investigation, and as of 2:30pm today 30th November 2015, he no longer works for the Meriton Group."

How can HR reduce the risk of social media misconduct?

In the wake of the incident which brought out of hours misconduct to the forefront of the mainstream media agenda Akolade has sought out insights from expert participants in the 2016 Fundamentals of Workplace Law series.

The role of HR in developing clear policies pertaining to out of hour’s behaviour cannot be understated, as explained by Alan Bradshaw, Manager Employee Relations at Roy Hill.

“In an ideal world employers should have a code of conduct which expressly states that employees’ internal and external actions and behaviours will be considered when reviewing complaints and incidents, which may affect the employment relationship,” says Mr Bradshaw.

A specific social media policy is advised for employers who are looking to manage the implications of increasingly connected employees. Michelle Hitchener, National HR Team Leader at Flight Centre Travel Group Limited advocates for procedure which “support the values and nature of the business”, explaining that policies can include definitions of use, outlining inappropriate, official, professional and private uses of social media.

“We don't want to eliminate social media because there are great benefits in positive storytelling, however it's important to be very clear in what is inappropriate use and to have disciplinary policies with procedural fairness and due process provisions, which should be applied consistently," says Ms Hitchener.

What should employers do when faced with this scenario?

Andrew Cardell-Ree, Partner at Thomson Geer, a commercial law firm in Sydney, Melbourne, Brisbane and Adelaide, has unpacked the legalities of the incident:

"If there is a sufficient connection between the online conduct and the employment relationship in question, an employee's actions in posting comments online can lead to disciplinary action or dismissal."

Much depends on the nature of the employer's business, the nature of the individual's role and duties, whether the conduct is likely to damage the employment relationship and the seriousness of the breach.  A senior client-facing employee of a service provider might expect that their online postings will be closely connected to their employment, with serious consequences for any comments that might reflect poorly on their employer or its standing with clients.  That said, all employees have a duty to put the interests of their employer above all others, and employers have dismissed employees over online tirades about their employer's failings that name the employer, no matter what the employee's role.

It isn't always easy to balance brand protection and the need for fairness, and each case depends on its merits.  Prudent HR practitioners will at least:
  • Consider all of the circumstances before taking any action;
  • Be satisfied that there is a sufficient connection between the online conduct and the particular employee in question; and
  • Ensure that the sanction is proportionate to the seriousness of the conduct in question.

Clear and well-known, consistently enforced behavioural expectations, reflected in codes of conduct or policies modelled by leaders of the business and the subject of training and periodic refresher training can only help.

For further information on this and other pressing legal issues facing Australia's HR Community, click here to access Akolade's 10th Workplace Law Fundamentals coming to your state in April 2016.

Having unfulfilled her childhood dream of becoming an international spy, Ellise is loving her position as Conference Production Manager at Akolade. Her favourite thing about the role is that it allows her to stay abreast of the latest news across a variety of industries while constantly learning from experts in their field. 

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