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Social Media - Induction Training is Not Enough

5/07/17
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In a recent School Governance article, we commented about school social media policies, privacy and the posting of images of children online by parents. However, it is not just the posting of online images that may cause issues in a school.

There have been several cases over the last few years regarding employees who have been dismissed because of online bullying, online discrimination and other matters that could be construed as serious misconduct - all whilst using private social media platforms.

Although the case of Stutsel v Linfox Australia Pty Ltd decided in the Fair Work Commission (the Commission) is now a few years old, it tells a tale that should be heeded by any school that does not have a (or may have an outdated), social media policy for staff.

In this circumstance, although the employee did not work in a school, the issues raised and the subsequent ruling by the Commission provide a very clear warning for School Boards and Executive staff, especially as more and more people take to social media platforms to not only share photographs and stories but also to vent frustrations and share complaints.

The Facts

Mr Stutsel was employed by Linfox as a truck driver and he was terminated for serious misconduct. The termination was based on the content of several posts on his personal Facebook pages in relation to two of the company managers. One manager discovered the posts and took great offence. Mr Stutsel’s employment was terminated for serious misconduct on the basis that the comments on his personal Facebook page were, according to the company, sexually discriminatory, harassing and racially derogatory.

Mr Stutsel admitted that he posted these comments on his own Facebook page as he thought it was only for private use.  Mr Stutsel even claimed that he had the highest privacy settings set in his Facebook account so no-one, except for the people he invited as 'friends' could view his page. One thing that Mr Stutsel forgot was that he had friends on his Facebook account who were also employed at Linfox.

The issue

The Commission had to decide whether Mr Stutsel's comments within the posts that he made on his Facebook page gave grounds for Linfox to dismiss Mr Stutsel.


The Outcome

In its ruling, the Commission found Mr Stutsel not guilty of serious misconduct and he was re-instated. The Commission decided to re-instate Mr Stutsel because at the time of Mr Stusel's dismissal, Linfox did not have any policy relating to the use of social media by its employees. Commissioner Roberts remarked that Linfox relied "on its induction training and relevant handbook to ground its action against Mr Stutsel. In the current electronic age, this is not sufficient and many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies." Linfox did not.

What are the risks?

Common risks of the use of social media in any workplace include risks of defamation, harassment, intimidation or bullying. However, in the school context, inappropriate uses of social media have led to incidents, once contained inside the school gates, becoming very public and having severe reputational consequences for the school community.

This particular decision by the Commission highlights the absolute necessity for schools to have a current, valid and well known employee social media policy, with clear understandings of consequences for staff in the event of a breach of the policy.

Schools are generally aware that they can usually only restrict staff use of social media in the context of their employment, both within the workplace and during working hours. However, after-hours conduct (even on private computers) can be regulated if it is work-related or if it breaches staff obligations to the school.

The social media policy must be able to guide all staff with regard to clearly setting out what is considered to be unacceptable social media behaviour by employees and it must also outline the consequences for staff if the policy is ignored.

Unacceptable behaviour includes harassment, intimidation or bullying of work colleagues, criticism of other members of staff, students, parents, management or the operations of the school, and more so if the school can be identified. An implication by the employee that they are representing the views of the school in their personal social media account is also usually considered unacceptable unless specifically authorised by the school.

The policy alone is not sufficient. The plethora of unfair dismissal cases which now relate to social media misbehaviour have resulted in some guidelines of what is expected of an employer in such circumstances so that they are more likely to be successful in defending a dismissal claim. While there are never any guarantees, schools faced with a similar situation of taking action in response to staff misuse of social media must consider whether they would be able to defend any action by:

  • having a clear school social media policy which relates to personal use of social media and unacceptable behaviour as it relates to the school;
  • showing evidence that the policy and consequences of breaches of the policy have been effectively communicated to all staff;
  • showing evidence that the school has provided all staff with social media training – and regular updates;
  • having evidence that staff are actually aware of the policy (testing may be appropriate);
  • consistently applying the policy in taking action where breaches have been shown; and
  • of course, following due process in investigating and coming to a decision on disciplinary action.

If faced with a situation such as this, is your school able to show that it has a social media policy in place and it has been effectively implemented?

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About the Author

Craig D’cruz

With 39 years of educational experience, Craig D’cruz is the Principal Consultant and Sector Lead, Education at Ideagen CompliSpace. Craig provides direction on education matters including new products, program/module content and training. Previously Craig held the roles of Industrial Officer at the Association of Independent Schools of WA, he was the Principal of a K-12 non-government school, Deputy Principal of a systemic non-government school and he has had boarding, teaching and leadership experience in both the independent and Catholic school sectors. Craig has also spent ten years on the board of a large non-government school and is a regular presenter on behalf of Ideagen CompliSpace and other educational bodies on issues relating to school governance, school culture and leadership.

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