If you’ve been following the Israel Folau vs Rugby Australia saga in the media, you may have been intrigued (as we were) that what began as a polarising social media post, then determined to be a breach of the Rugby Australia Code of Conduct, lead to questions of freedom of speech and a case brought to the courts by Folau claiming he was unlawfully terminated.
If you’re interested in the full story, and how it has unfolded over the past 9 onths or so, you can read more about it here.
This story grabbed our attention because its not too unfamiliar. Of course, the businesses we work with do not have such a public and high-profile connection to their employees, like national sporting organisations, teams and their players. However, in many organisations, employees are seen to be representing the brand and the brand’s values, and when their personal social media posts and public online activities are in conflict with these values, as in the Folau case, this can expose employers to risks such as reputational damage, and depending on the situation, these can also lead to litigation.
What can you do as an employer to protect your business?
Having a Code of Conduct, Social Media Policy and employment contracts that reflect the expectations of employees around use of social media is important. However, it’s important to also ensure these are understood, and that employees agree to adhere to the expectations.
Employees are required to act according to their employer’s expectations as set out in policies and their employment contract. If an employee’s conduct is not in line with the employer’s policies, they may be breaching the terms of their employment contract or failing to follow the lawful and reasonable instructions of the employer.
An employer responding to breaches of policy or contract, can take disciplinary action which may include written warnings, behaviour or performance management plans, or in some circumstances termination of employment. In these circumstances it is critical that a fair and just procedure is followed, and again, having a detailed and robust policy to guide this is helpful.
In summary, what can we learn from the Folau vs Rugby Australia saga?
Employers wanting to avoid the pitfalls of social media should consider:
- adding terms to their employment contracts, such as a morals clause and social media clause, to prevent employees from bringing the employer into disrepute;
- updating workplace policies and Codes of Conduct to reflect the values and expectations of the employer;
- ensuring that all employees are aware of workplace policies, understand the policies and have agreed (in writing) to abide by them; and
- providing training around acceptable social media use, giving examples of inappropriate online behaviours and explaining the risks to the business and disciplinary actions that can be taken against employees who breach these policies.
The crossover of privacy laws, freedom of speech, employer and employee obligations and social media is complex and can be difficult to navigate confidently. If you need assistance to implement or update your social media policies, get in touch with our team today.