KEY TAKE OUTS
- Protection of reputation is critical in the financial services industry where customer confidence is critical.
- Businesses in the financial services industry should consider implementing social media policies to assist in the protection of reputation.
- Social media policies can extend to posts made by employees outside work hours.
A successful financial services business is one where there is a high degree of trust between it, its customers and stakeholders. Maintaining a reputation of professionalism and integrity is key to protecting that trust.
Protection of reputation is particularly critical in the financial services industry, given the requirements for obtaining and maintaining an Australian financial services licence (AFSL). This is the case for both businesses and individuals.
ASIC can suspend or cancel an AFSL, or ban a person from providing financial services, if ASIC has reason to believe a person (in the case of the former being one of the licensee’s responsible officers) has been found to have engaged in inappropriate conduct.
Social media can be a powerful tool for enhancing one’s reputation. But, it can also quickly undermine it. It is important for businesses in the financial services industry to educate staff and consider implementing social media policies to assist in the protection of reputation.
Increasingly, employees are being subject to disciplinary action, and in some cases dismissed, because of statements made by them on social media platforms, such as Twitter and Facebook, which the company considers is damaging to its reputation. The significance of these platforms is that what previously may have been a passing comment to a group of people around a table in a small social setting is now ‘etched in stone’ for all to see.
The consequences of this were keenly felt last year by SBS Reporter, Scott McIntyre. Mr McIntyre was dismissed after he made a series of tweets expressing controversial opinions about Anzac Day. The tweets drew widespread attention, including from Malcolm Turnbull who tweeted a comment, criticising the tweets.
It has been reported that Mr McIntyre has lodged a claim against SBS under the Fair Work Act 2009 (Cth), alleging (among other things) that he was unlawfully terminated because of his “political opinion”. SBS is said to be defending the claim on the basis that Mr McIntyre’s employment was terminated because the tweets were in breach of its social medial policy and code of conduct.
So, what can be the scope of a company’s social media policy? Can it impact on ‘out of work’ social media activities and posts of employees?
An employee of Linfox, Mr Pearson, was dismissed following being issued with a number of warnings, including for refusing to sign a social media policy put in place by Linfox. Mr Pearson lodged an unfair dismissal claim in the Fair Work Commission. Mr Pearson’s case was dismissed. The Commission concluded that Linfox’s request for Mr Pearson to sign the social media policy was lawful and reasonable: Pearson v Linfox Australia Pty Ltd  FWC 446. Of note, the Commission also stated:
“[I]n the employment context the establishment of a social medial policy is clearly a legitimate exercise in acting to protect the reputation and security of a business…Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only…[It] is difficult to see how a social media policy designed to protect an employer’s reputation, and the security of the business, could operate in an “at work context” only…[C]learly there are some obligations employees accept as part of their employment relationship that have application whether they are at work or involved in activities outside work.”
An appeal by Mr Pearson of the decision upholding his dismissal to the Full Bench of the Fair Work Commission was unsuccessful. The decision reinforces that companies may implement social media policies and that those policies can address the activities of employees outside work.
Another case in which an employee’s social media activities outside work hours came under scrutiny involved Credit Corp: Little v Credit Corp Group Limited t/as Credit Corp Group  FWC 9642. Credit Corp successfully defended an unfair dismissal claim made after it dismissed an employee following posts he had made on Facebook.
The employee had posted a comment on the Facebook page of an organisation with which Credit Corp had professional dealings, and with which the employee had dealt during the course of his work, criticising the organisation. The employee had also made an inappropriate comment, with sexual language, on his own Facebook page concerning an employee of Credit Corp. The employee claimed that his Facebook profile was “private” (which, on examination was not the case) and that he was entitled to his personal opinion.
Not only did Credit Corp have a social media policy in place, the employee had also undertaken online ‘Working Together’ training which included the following scenario as part of a post training test: “After work, Peter posted a negative comment about one of his team mates on Facebook. Lots of other employees saw this comment”. The test results confirmed that it was inappropriate to make negative comments about team mates of Credit Corp online.
Even if Credit Corp did not have relevant policies or training in place addressing the employee’s actions, the Commission’s comments inferred that the employee should have understood his postings were inappropriate. In concluding that the dismissal was not unfair, the Commission said:
“[The] applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on [Credit Corp] and/or damage its reputation and viability.”
The fact that a company does not have a social media policy in place will not necessarily prevent it from taking disciplinary action against, or terminating the employment of, an employee due to social media posts made by them which are damaging to the company’s reputation.
However, implementing such a policy (including training on it) assists a company to emphasise the expectations it has of its employees with respect to their social media activity.
The policy needs to be drafted carefully to strike a balance between protecting the interests of the company yet not unduly limiting the private activities and expression of personal opinions by employees.
Ultimately, a social media policy should emphasise the importance of employees ensuring their posts do not injure the reputation or business relationships of the company and, for that matter, their own personal reputation.