Social Media Misconduct: The Need for a Fair Investigation

Vince Scopelliti - Wednesday, June 19, 2019

An ever-increasing key dilemma for employers in the modern age is how to deal with the misconduct by staff through their use of social media platforms. 

The list of potentially offending conduct is lengthy. For example, staff might call in sick but then post details of their activities on social media. Employees could post inappropriate, defamatory or confidential information on their accounts. One high-profile example is the sacking of a PayPal executive in 2014 who publicly ranted about his co-workers on Twitter, or more recently the well publicised matter regarding Israel Folau and his instagram post. 

Given such a potential minefield, we look at what employers should do to ensure a fair investigation relating to allegations of social media misconduct.

procedural fairness key in australian case

The matter of Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186 highlights the importance of ensuring that an investigation is thorough and involves appropriate levels of procedural fairness. This requirement applies in social media misconduct, as in all other cases.

Mr Singh was dismissed from his role as a baggage handler in October 2015. Although the reasons for his dismissal were not made immediately clear to him, after proceedings had been issued in the Fair Work Commission, the employer alleged that Mr Singh had breached its social media policy by publicly supporting ISIS and known associates. 

It was also claimed that he had made radicalised comments against the Australian Government. Of particular relevance and concern was Mr Singh's status as an airline employee. 

Before he was terminated, Mr Singh was advised that there had been complaints involving his social media posts and that there would be an investigation. However, Commissioner Hunt found no evidence that Mr Singh was told he could bring a support person to the investigation meetings. Further, although the termination related to a number of posts on social media, Commissioner Hunt accepted that not all posts were shown to Mr Singh for his response. 

Factors in the decision

Relevant factors taken into account by the Commission in determining whether conduct occurring away from the workplace can invoke disciplinary action, include conduct that is: 

  • Likely to cause serious damage to the employer/employee relationship; or
  • Damaging to the employer's interests; or
  • Incompatible with the employee's duty as an employee. 

Before the Commission, Mr Singh's evidence was to the effect that he was against ISIS and radical Islam, and that his comments had been sarcastic. 

the outcome of the case

It was concluded that the employer had not spent sufficient time investigating whether or not Mr Singh was in fact opposed to ISIS. Commissioner Hunt accepted, that if there had been sufficient evidence to demonstrate that Mr Singh had a radicalised perspective on Islam, there would have been too great a risk for an employee with these views to continue working at the airport. 

However, it was determined that in the circumstances the employer should have gone to greater effort to investigate Mr Singh's Facebook newsfeed. If that had occurred, it was considered that it would have been clear that Mr Singh's claimed sarcasm was the true motivation behind his postings. 

Accordingly, the Commission determined that, if a proper investigation had taken place, it would have been apparent that Mr Singh was not radicalised. Therefore, Mr Singh's dismissal was deemed harsh, unjust and unreasonable. 

Instead of terminating his employment, it was considered that an appropriate disciplinary action commensurate with the misconduct would have been reiterating the social media policy of the employer and insisting that Mr Singh refrain from posting incendiary material.

need help in ensuring a fair investigation? 

This case demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action. In unfair dismissal claims, the Commission will not hesitate to award judgments in favour of the applicant where it is determined that the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair and enforceable, WISE Workplace provides investigation services, as well as 'conducting workplace investigations' training. 

Performance Management vs Bullying: Where's the Line?

Vince Scopelliti - Wednesday, June 12, 2019

Employers often face a quandary in dealing with underperformers, and whether to place them onto a performance management program. 

It's essential that any such move can always be considered to be 'reasonable management action' in response to inappropriate behaviours or inadequate or unsatisfactory performance, and not simply a way of bullying an employee. 

Let's take a look at the difference between performance management and bullying, and how employers can make sure they are not crossing the line.  

what is performance management?

At some point, every employer will need to manage an underperforming staff member. In practice, this means taking steps to deal with poor conduct, including:

  • Non-compliance with policies/procedures and other workplace requirements
  • Inappropriate, disruptive or generally bad behaviour
  • Unsatisfactory performance of work tasks

The necessary steps may range from informal performance management, where the inappropriate or unsatisfactory behaviour is brought to the staff member's attention, through to a more formal process such as the implementation of a performance improvement plan.

is it reasonable management action or is it bullying?

Employers are not prohibited from dealing with staff that they consider are underperforming. However, care needs to be taken to avoid bullying a staff member, within the meaning of s789FD (1) of the Fair Work Act 2009 (Cth)

That legislation defines bullying as a situation where 'an individual... or group of individuals... repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and... that behaviour creates a risk to health and safety'.

The same legislation explicitly excludes 'reasonable management action carried out in a reasonable manner' from the bullying definition.

But what is reasonable management action? Although not an exhaustive list, the following situations constitute appropriate management action within the meaning of the legislation:

  • Scheduling regular meetings to discuss ongoing performance issues
  • Disciplinary an employee for identified misconduct
  • Undertaking an investigation into a complaint
  • Modifying a worker's duties as required by operational reasons or the employee's health.

When making an objective assessment of the reasonableness of the management action, it is important to consider what caused the action, what circumstances were  in train while the action was taken, and what occurred as a result. 

It is also important to note that there is no 'retrospective gold standard'. Just because an employer may, in hindsight, have been able to improve on the way they undertook the action, does not necessarily mean that it was not appropriate reasonable action at the time. 

Moreover, although the staff member's perception of a negative management action is likely to tend towards it being unreasonable, the standard is objectiveness and this is not determined by one or a group of employees' views.

lesson from real-world cases

Unsurprisingly, the question of what constitutes reasonable management action is one which is frequently litigated in court. 

In the decision of Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, it was determined that a manager's day-to-day instructions were not enough to constitute 'management action'.

In National Australia Bank Limited v KRDV [2012] FCA 543, the court considered that although the employee was spoken to about her performance in both a formal Action Operation Management meeting and in a 'casual chat', the two meetings were not sufficiently clear as performance-related discussions to constitute reasonable management action.

how to ensure compliance with reasonable management action

Practical tips for compliance include: 

  • Ensuring that formal and documented performance management processes occur at all relevant times, and avoiding informal or impromptu 'chats' on performance
  • Reviewing policies and procedures regularly, in relation to bullying and also appropriate disciplinary action
  • Advising managers to always provide clear and direct instructions, which cannot be seen as ambiguous
  • Documenting and providing formal written warnings when inappropriate behaviour is called out, to demonstrate that management involvement has been required. 

Performance management is part of maintaining a successful business. However, if you receive complaints regarding your performance management approach, and want to ensure that you are complying with best practice and acting in a fair and reasonable manner, contact WISE for assistance and advice today.

What Should You Include in a Whistleblower Policy?

Vince Scopelliti - Wednesday, June 05, 2019

Whistleblower protections have been top of mind for many Australian organisations recently, following a number of changes to the law. 

The Treasury Laws Amendment (Enhancing Whistle-Blower Protections) Bill 2017 is due to come into effect from July 2019.

This will result in significant changes to the way whistleblowers are to be treated under a raft of existing legislation, including the Corporations Act 2001 (Cth), the Banking Act 1959 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth).

One of the key changes is the need for organisations to have policies in place around whistleblower procedures and protections. 

So what are some of the key changes to the law, and what should your whistleblower policy include? 

the key changes to the law

A number of changes will take effect under the new legislation, including: 

  • The expansion of the definition of 'whistleblowers' to include relatives, dependants, their spouses, former employees and former associates.
  • Excluding personal work-related grievances from conduct that is otherwise deemed to be reportable.
  • Enhancing protections for whistleblowers. This includes increased anonymity, more significant penalties for revealing identities of whistleblowers and facilitating the ability for whistleblowers to seek compensation or redress in situations where they have been victimised. 
  • Limiting the persons in a business who are entitled to receive disclosures, but permitting externalisation of whistleblowing to the media and/or parliamentarians in circumstances where the disclosure may be a matter of public interest or emergency. 
  • Requiring public and large proprietary companies (defined as companies with consolidated revenue of at least $25 million, consolidated gross assets of at least $12.5 million or at least 50 employees) to have a detailed and compliant whistleblower policy in place. 

defining conduct to be reported

The intention of the legislation is to protect people who: 

  • Report misconduct or 'an improper state of affairs or circumstances' in situations where the whistleblower has reasonable grounds to suspect that the misconduct has occurred. This is generally expected to cover 'unethical' conduct. 
  • Believe an offence has been committed under legislation whose supervision comes under the purview of the watchdogs APRA or ASIC.
  • Report behaviours which 'represent a danger to the public or financial system' or otherwise relate to a civil or criminal offence which could result in imprisonment for a period of at least one year. 

explaining the process

In the event that a staff member wishes to make a disclosure, it is essential that it is only made to the appropriate category of person. Internally, this includes officers of the company, a person authorised by the company to receive 'protected disclosures' (such as an HR representative) or a senior manager of the whistleblower, who is an employee of the company. Companies can facilitate disclosure by implementing a mechanism for staff members to report online or over the phone. 

External disclosures can be made to ASIC/APRA, auditors or actuaries reviewing the company, lawyers or journalists or parliamentarians where public interest would be met by making the disclosure.

Whistleblowers are entitled to retain anonymity. However, the information does not need to remain confidential, as long as it can be demonstrated that:

  • The information requires investigation.
  • Reasonable steps have been taken to maintain the anonymity of the whistleblower in conducting such an investigation. 

protections for whistleblowers

The new legislation sets out a number of strengthened protections for whistleblowers.

  • Immunity against civil, criminal, administrative or disciplinary action.
  • An inability to enforce contractual remedies against a party making the disclosure.
  • An inability to admit information provided by a whistleblower into evidence in proceedings against them (unless those proceedings are pursued because of the falsity of the information). 
  • Protection against victimising conduct (such as dismissal, demotion, discrimination or similar).
  • Increased anonymity protection through strict liability criminal offences for revealing identities of whistleblowers
  • Significant monetary penalties applicable to person(s) who reveal the identities. 

What to include in a whistleblower policy?

Organisations who are required to have a whistleblower policy must ensure that it covers off key points, including: 

  • What protections the employee can expect to receive.
  • Details on how those protections will work in practice.
  • Specific information on how a disclosure can be made.
  • Details on how disclosures will be investigated.
  • How the policy will be transparently implemented. 

The policy should be communicated to all staff, from the CEO down. It should be made available where all staff members can easily access it, for example posted on an intranet. 

It is clear that the content and nature of a whistleblower policy are key to appropriately implementing the legislation. To assist our clients in understanding the looming changes and preparing, we have published a white paper, which is available on our website for free download.

We also provide our industry-leading Grapevine Confidential Whistleblower Hotline, which is staffed 24 hours a day, 7 days a week. Grapevine provides employees with the opportunity to make anonymous complaints to trusted and experienced operators.