The rise & risk of social media
looking after you and your business
Many Australian health practitioners have taken the leap online without fully understanding the reputational, legal and operational consequences that can arise from doing so. This article will focus on those risks as they apply to health professionals.
The divergence of professional and personal life.
The internet has blurred the line between home and work, and employees should not assume that comments made in a private capacity will not impact on their employment. The leading authority on whether out of hours conduct will impact on the employment relationship is the case of Rose v Telstra Corporation (AIRC Print Q9292 (4 December 1998)), where the Australian Industrial Relations Commission found that in certain circumstances an employer has a right to terminate an employee’s employment for conduct outside of work hours if the conduct:
a) was likely to cause serious damage to the employment relationship; or
b) damages the employer’s interests; or
c) is incompatible with the employee’s duties.
Of course, Rose v Telstra was decided prior to the advent of social media. In the 2010 case of Sally-Anne Fitzgerald v Escape Hair Design [2010 FWA 7358] Fair Work Australia (as it was then called) found that while it was accepted in Rose v Telstra that behaviour outside working hours may have an impact on employment “to the extent that it can be said to breach an express term of [an employee’s] contract of employment”, a Facebook posting may go further.
In this case the employee was dismissed for posting a negative comment on Facebook about the alleged failure of her employer to pay holiday entitlements and the fact she had received a performance warning. The post did not disclose the employer’s identity and was only accessible to the employee’s Facebook “friends”.
In finding that the termination was unfair, Commissioner Bissett made the following observation: “A Facebook posting, while initially undertaken outside of working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to the site to see it… It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences”.
Risks to your business
Brand damage is a real risk that can arise from the misuse of social media. Bad publicity can have severe commercial consequences, particularly in an industry where word-of-mouth can make or break a business.
Legal risks associated with the use of social media can involve defamatory comments posted online by employees/former employees, and false or misleading information being posted by patients. An employer can be held vicariously liable for the acts of its employee, which can have significant financial consequences as well as insurance implications. There is also the risk of an employee inadvertently disclosing confidential information via a social media platform. That information is often of significant commercial value and can be costly to recover.
The use of the internet and social media has caused a marked increase in cyber bullying and harassment claims. Most employers are aware that bullying and harassment claims can cause workplace stress, absenteeism and staff turnover, however such claims can also lead to protracted and expensive litigation.
The importance of planning
Your business must have a response management plan in place to manage and respond to negative comments posted on a social media space. It is essential that only business owners or designated employees have access to social media accounts and passwords and monitor online content.
The importance of employers keeping pace with technology and taking steps to mitigate the risks associated with the use of social media cannot be underestimated. Social media policies should be reviewed and updated on a regular basis and expectations must be communicated to employees (and where appropriate to clients/customers).
