Marion Cole

Employment media trumps social media

Marion Cole

2 October 2013

Employment Policies

Employee use of social media to promote their own interests and views can damage employers, but two recent cases illustrate that the courts and tribunals are sympathetic to the risks.

The Fair Work Commission has found that an employee who used LinkedIn to solicit private work was not unfairly dismissed, while the Federal Circuit Court has found that employees have no right to rely on free speech to breach their employment contracts.

 

Termination for soliciting on LinkedIn

 

In Pedley v IPMS Pty Ltd t/a peckvonhartel [2013] FWC 4282, Pedley was employed as a senior interior designer and had responsibilities in dealing directly with his employer’s clients. On 14 January 2013, he sent a group email to a number of recipients on LinkedIn referring to his private business and noting that he intended to expand this business to a full-time design practice. Significantly, Pedley invited the recipients to contact him about any jobs, large or small.

 

Pedley’s employment was terminated the next day after his employer, IPMS, became aware of the email.

 

In arguing his case before the Fair Work Commission (FWC), Pedley initially claimed that the recipients of the email were not clients of his employer, although he did concede that some of the people who received the email worked for customers of his employer.

 

Pedley also asserted that:

  • he was actually trying to solicit work on behalf of his employer, because he claimed that any work that was too big for him to handle would have been referred on to his employer; and
  • his employer was aware of his other business activities and had condoned him operating his own business.

 

The employer claimed that it had a valid reason for terminating Pedley’s employment because Mr Pedley had acted in a manner which was incompatible with the faithful performance of his duties to his employer. His employer claimed that “conduct which impedes the faithful performance of his obligations or is destructive of the necessary confidence between employer and employee is a ground for dismissal.”

 

In dismissing Mr Pedley’s application, Commissioner Deegan accepted that:

  • Mr Pedley’s email breached his “fundamental employment obligations to his employer”;
  • the email amounted to soliciting work from current clients of his employer.

 

The FWC did not accept Pedley’s argument that his employer had, by providing a limited agreement to him performing private work, waived its right to object to him soliciting clients to move their business to his new business.

 

Although Pedley was not given a chance to respond to the allegations which formed the basis of the decision to dismiss him (which means he was denied procedural fairness), the FWC accepted that Pedley could not have provided an explanation which would have changed the outcome.

 

Conclusion

 

This decision is encouraging for employers seeking to protect their legitimate business interests from internal white-anting and competition conducted via on-line professional communities such as LinkedIn.

 

But it also provides a reminder that employers should properly advise employees about their obligations about:

  • working in other businesses (during and after employment);
  • seeking to compete with their employer (including by advertising for new business via social media during or after employment).

 

Freedom of speech? Not in employment

 

In Banerji v Bowles [2013] FCCA 1052, the Federal Circuit Court made it clear that freedom of speech (assuming such a right exists in Australia), does not provide a licence for an employee to breach a contract of employment.

 

Banerji commenced interlocutory proceedings against the Department of Immigration and Citizenship (DIAC) because she was concerned that DIAC intended to take adverse action against her in her employment.

 

Banerji had been investigated by DIAC over her Twitter account, which had been used to make critical comments and other observations in relation to a range of issues, including matters connected with DIAC, the immigration policies of the Australian Government and comments in relation to the private companies that handled immigration detention.

 

Banerji made a number of complaints about her colleagues and sought to claim whistleblower status. She also sought to rely on an implied freedom of political communication as a right she claimed was “constitutionally guaranteed under our country’s laws” in defence of any comments she made under her Twitter account.

 

Her employer denied that it had commenced an investigation for a prohibited reason (as defined in the general protections sections of the Fair Work Act 2009). Rather, the employer claimed that the investigation arose because Banerji contravened the Australian Public Service Code of Conduct and the Guidelines on Use of Social Media by DIAC Employees.

 

Justice Neville of the Federal Circuit Court did not accept Banerji’s claim that any communication she made via Twitter was protected by an implied freedom of political communication.

 

The Judge confirmed that any such “rights” are not unfettered or unbridled. Even if such a right existed in the terms contended by Banerji, Justice Neville concluded it would not be sufficient “to provide a licence to [allegedly] breach a contract of employment”.

 

Justice Neville declined to grant the interlocutory orders sought by Banerji.

 

Conclusion

 

The limited constitutional rights to freedom of speech in Australia do not extend to protecting employees who consciously and wilfully breach their contractual duties.

 

In particular, it is clear from this case that having a well-drafted and implemented social media policy will provide significant protection against rogue employees.