22 Feb 2015

In this digital age when an employee has had a bad day at work it can be tempting for them to shout “Unfair” over a highly visible social network.  An impulsive social media outburst can have dire consequences for the reputation of both the employee and the employer. 

Even when an employee isn’t disgruntled, social media can cause loss.  For example, an unauthorised announcement or opinion piece by an employee could be damaging, or a business may lose clients due to LinkedIn notifications that advise when an employee has moved to a new company.

An employee who causes their employer damage misusing social media will more than likely lose their job – however in some circumstances they may also be liable for financial losses their employer incurs as a result of their actions. 

Playing fair and seeking good legal advice can assist all involved to minimise the risks of a social media hijack.

Expected and Rejected Online Activities

Employees often complain about their workplaces to their friends.  However, posting opinions online has the potential to do damage that cannot easily be undone. Facebook, LinkedIn, Twitter etc.. are open networks where information can be easily accessed, promoted and spread in seconds to thousands (even millions) of people.  It isn’t hard to see that unauthorised posts by employees about any aspect of their work have the potential to do real damage to an employer’s business. 

A clear social media policy is an important risk management tool for employers.  Employees should be aware of exactly what online activities are expected and permissible.  Courts and Tribunals have been clear that employers are reasonable to expect their employees will not cause their business damage using social media even where their activities are undertaken outside of work hours.  The policy should:

– state what (if any) business development activities are expected and allowed using social networks, and
– outline any procedure to be followed when posting information about or on behalf of the employer,
– consider appropriate online communications with other employees who could feel harassed or bullied by their colleagues’ use of social media, and
– require the employee not to post any derogatory or damaging comments about their workplace, colleagues, clients or customers

Discipline and Dismissal

If an employee breaches a social media policy normal disciplinary procedures should be followed.  These should include notifying the employee of the concerns held, providing an opportunity for the employee to explain their actions and (if necessary) offering a support person to be present where termination of employment is a possibility.  It is also important that any social media policy is monitored and enforced.  An employer may be considered to be acting in a discriminatory manner if some but not other employees are disciplined for similar online activities.   

Even in the absence of a social media policy employees are expected to refrain from deliberately or recklessly damaging their employer’s business.  All employment contracts have an implied term to act in good faith.  This term applies to the employee and the employer equally.  If an employee posts information or comments online with the intent of causing harm to their employer’s reputation they will have breached their contract of employment in a way that could warrant immediate dismissal.  

Claiming Damages from Employees

Generally, employees cannot be held liable for negligence or carelessness that causes their employer loss. Similarly, a breach of a policy is unlikely to be sufficient for an employer to successfully make out a claim for damages against an employee.  However, where an employee has deliberately breached an explicit term of their employment contract and losses result the employee could be held personally liable.  

Court action can be taken even where the employee had already resigned or been terminated when they posted damaging information on social networks. An employer may rely on clauses in the employment contract that survive termination (such as confidentiality or restraint of trade) to prove a breach of contract.  The implied term of good faith may also survive beyond the period of employment. 

Senior employees have a greater potential to do damage to their employer, and will be more readily held to account for breaches of their employment contract.  Courts recognise that senior executives receive high remuneration for their services to an employer and are intrinsically involved in maintaining their employer’s reputation.  Employers will find it easier to enforce contractual limitations on the online activities of senior employees – both during their employment and for a reasonable period after it ends. 

Tips for Employers

– Publish a clear social media policy for your employees to follow.
– Enforce disciplinary action where social media is misused – a policy that is not enforced loses currency and clout.
– Include explicit terms in employment contracts regarding the use of social media and any expectations that extendbeyond the period of employment.
– Where an employee is being terminated or resigning consider whether a Deed of Release can be negotiated, and if so include:

   – requirements for mutual non-disparagement, 

   – specific restraints of trade, and

   – agreement in relation to what announcements regarding their departure from the company can be made on social media and when. 

100 years of Supporting West Australians

"My family law experience with Mary Roubos has restored my faith in solicitors in general. She not only demonstrated her legal expertise and flair, but also showed a compassionate and understanding nature during the lengthy process. I felt that Mary went above and beyond her obligations as my solicitor, and really listened to me. I would highly recommend Mary and her assistant Debra Wilson, who also demonstrated professionalism and excellence on all levels."

Renee Frangiosa

"Always fast and thorough service. Thank you"

Sitka Pil

"I found Ben most helpful and always prompt to let me know where things were at. Will definately use Ben again and will recommend to others."

Gerrit and Mary Van Bralal

"We wish to express our thanks for your help in attending to our mother/ wife's will - Mrs Grace Margaret Vessey. Aimee was extremely helpful and easy to deal with. We are greatful for your help with our affairs."

Ms Rosalyn Norman, Mr Stephen Vessey

"Thank you ever so much for all your hard work on my case Nicole, I really appreciate everything you did for me."

Workers Compensation Client

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"I highly recommend the services of HHG Legal Group for both personal and business needs. HHG is very up to date with legal advice and are in tune with the evolution of business."

Robert Forgione

"Sue and myself would like to thank HHG for the way in which our dispute was resolved. It is good to know that people who do not have an understanding of the legal system can rely on people like yourself and the company you represent. Without the assistance of HHG we could not have resolved the problems we were facing, not only have we resolved the issue but the outcome was more favourable then we would have thought possible. Thank-you and please pass on our thanks to all those who worked behind the scenes to achieve this outcome."

Rick and Sue Ashton

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years and most recently in 2013 and February 2014.  Business has included drawing up of wills for three generations and preparing of probate for my father in law.

I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"Anne Hurley has been such a valuable resource of information and advice, her wealth of knowledge is truly impressive and her ability to explain things in a way that makes them easily understood is very much appreciated. Anne and the wider HHG Legal Group are always a pleasure to work with."

Giorgia Parham

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly , professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first class service. Their professional advice has been invaluable to our company."

Carolin Grimm

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group have provided outstanding support as I have taken the journey of buying a business, their professionalism is beyound reproach. Their assistance throughout the Due Diligernce process have been invaluable, I would fully recommend them."

Mark Armitage

"I have experienced how good the HHG Legal Group team are over the last 6 years and highly recommend them."

Lyn Hawkins

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker