Social Media, web forums & ch@t rooms - Issues in
EPL Claims
INTRODUCTION
'Social media' refers to the means by which people interact over the Internet through the creation
and exchange of user-generated content.
This seminar will cover issues that may arise from an employee's use of social media.
particular, it will address:
In

recruitment activities;

conduct issues, including bullying, harassment and other forms of misconduct related to
social media use and public comments made by employees using social media;

performance issues related to the extent of an employee's social media use during
working hours; and

other issues raised by social media use, including employees' privacy and the use of social
media content as evidence in investigations and legal proceedings.
KEY PRINCIPLES
Whilst social media is a new and rapidly evolving technology, there are established principles for
managing employee's conduct and performance which can be readily applied to social media
usage.
Conduct
Social media use can give rise to a range of potential breaches of the APS Code of Conduct (Code)
set out in section 13 of the Public Service Act 1999. Among other things, the Code requires APS
employees to:

"behave honestly and with integrity" and "treat everyone with respect and courtesy and
without harassment" when acting "in connection with their employment";

"use Commonwealth resources in a proper manner"; and

"at all times behave in a way that upholds … the APS Values and APS Employment
Principles … and the integrity and good reputation of the employee's Agency and the APS".
The key issue in each case will be establishing whether there is a relevant nexus between the
employee's social media use and the employment.
Performance
Social media use during work hours can adversely impact the performance of an employee's
duties. Performance issues can be handled through the usual performance counselling and
performance management processes. In some circumstances, the employer may have a basis for
directing an individual employee (or employees more generally) to not use social media during
working hours.
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POTENTIAL CLAIMS
Where an employer takes action (or fails to take action) in relation to an employee's social media
usage, there is the potential for the employee to make various types of claims, including:

lodging a discrimination complaint under anti-discrimination legislation or a general
protections disputes under the Fair Work Act 2009;

lodging an unfair dismissal claim in respect of dismissal from employment because of the
employee's social media usage;

lodging a workers' compensation claim (for injuries caused by bullying or harassing
behaviour by other employees on social media);

from 1 January 2014, an application to the Fair Work Commission for an order to stop
bullying (which is occurring through social media); and

a complaint under Work, Health and Safety legislation (regarding bullying or harassing
behaviour by other employees on social media).
Risk mitigation
This seminar will consider the following strategies for reducing the risk of EPL claims arising from
social media use:

developing and implementing a clear and comprehensive social media policy, which is
consistent with other relevant employment policies; and

providing employees and managers with training to ensure they understand the risks
associated with social media use, particularly with respect to a person's employment.
OTHER MATTERS
Evidence gathered from social media
Recently, there have been a number of cases before courts and tribunals where:

an employer has relied upon social media content as documentary evidence of an
employee's alleged misconduct; and

an employer or employee have relied upon social media content as evidence of key facts in
issue (for example, the use of a Facebook post to establish an employee's state of mind at
a particular time or the use of a person's LinkedIn account to establish the person's
understanding that she was engaged as an independent contractor rather than as an
employee).
Agencies should carefully consider the circumstances in which it may be appropriate to source
evidence from employee's social media.
Privacy
There have been a number of concerns raised by employees regarding employers accessing and
using social media content generated by employees or others. To the extent that social media
content contains personal information, employers need to act carefully to ensure they comply with
their privacy obligations.
ASHURST AUSTRALIA
23 October 2013
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