29 March 2018

How far is too far?

Social media use and its connection to the workplace

The dangers of social media use and the workplace are well known, and yet there seems to be a never ending string of cases before the courts.

The recent case of Luke Colwell v Sydney International Container Terminals illustrates how the law is adapting to ever‑changing social circumstances.

Mr Colwell worked as a stevedore for Sydney International.  After arriving home from the pub one night, he sent a pornographic video to 20 of his Facebook friends, some of whom were female and all of whom also worked for Sydney International.

After learning of the message, Sydney International commenced its own investigation, despite there not being any complaint from an employee.  At the conclusion of the investigation, Sydney International terminated Mr Colwell’s employment.  Mr Colwell then brought a claim for unfair dismissal.

While there is no argument that the distribution of such material was inappropriate, the questions before the Fair Work Commission (“Commission”) were twofold:

  1. Can a company begin its own investigation without an employee complaint?
  2. Does the sharing of a pornographic video over a social network constitute sexual harassment at a workplace?

In answering this, the Commission looked first at whether Sydney International was within its rights to launch its own investigation.

Self-initiated investigation

Sydney International contended that they had a duty of care to create a workplace free from discrimination and harassment.  The investigation was in line with its company policies and sought to protect and empower female employees.

In finding in favour of Sydney International, the Commission held that the actions taken by the company were proactive, responsible and prudent in the circumstances.  The Commission agreed that employer responsiveness is not, and should not, be contingent on a complaint being made.

Message sent outside work hours – not work related

Mr Colwell argued that his dismissal was unfair because it was predicated on an event that took place outside of work hours; and could not be considered workplace sexual harassment or in breach of company policy.

The issue was whether there was a relevant connection between the out-of-hours conduct and the interests of the employer.  If a relevant connection could be established, then the employer is entitled to dismiss the employee.

The question then arises as to what is a relevant connection?

Previous case law has illustrated that actions such as posting derogatory comments on Facebook (work related or non-work related) while listing your employer on your profile, may be a sufficient connection between out-of-hours conduct and the workplace.  Likewise, comments made on Facebook were found to constitute bullying at work, despite being made from home, as the bullying continued so long as the comments were able to be read.

In this case, the fact that every individual who received the message was an employee of Sydney International was sufficient for the Commission to declare there was a connection between the out-of-hours conduct and the workplace.  The inappropriateness of the video was likely to cause issues when the employees were all at work and in close proximity to each other.

Further, the video, if distributed at the workplace, would have been a violation of the company’s policies and code.  The video was permanent until the recipient deleted it and therefore it could be viewed at work.  Indeed, given the 24-hour nature of Sydney International, some recipients may have been at work when they received the video.

These facts led the Commission to conclude that although the message was sent from home, the harassment still had sufficient connection to the workplace to justify terminating employment.

Lessons to be learned

This case highlights the expanding nature of not only social media but the way that these platforms can impact workplace behaviour.  The Commission noted that the law in relation to these matters is likely to continue to develop.

It is important for employees to be mindful that inappropriate or harmful messages sent outside of work hours can be interpreted as being harassment at the actual place of work.

From an employer perspective, this case provides authority for the right to conduct its own investigations even where there is no official complaint.  Enforcing company policies need not be contingent upon receiving a complaint; a proactive response may be the best course of action.

For more information about this issue and all employment law matters please contact our partner, Elaine Jesurasingham on 07 4036 9700.

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