2013 Law Institute of Victoria Legal Symposium Speech to the Social Media Disasters Roundtable 28 February 2013

Leigh Howard My purpose today is to talk about social media disasters in the employment law space. Social media impacts upon employment law in some very interesting and important ways. In fact, I dare say that some of the first jurisprudence to interpret the nature of social media was jurisprudence deriving from employment tribunals. The Unfair Dismissal Jurisdiction The first and most obvious place to start explaining the impact of social media upon employment law is to consider the unfair dismissal jurisdiction. There are many cases1 where an employee has done something allegedly repugnant with their contract of employment when using social media, subsequently been dismissed, and then challenged that dismissal at the Fair Work Commission. You have most likely heard of these cases they are zealously reported by the press. These cases confirm the trite legal maxim that if you have nothing nice to say, dont say it at all. I am not going to dwell on these cases, but I make the following points:
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First, the cases to date confirm that an employee may be disciplined or dismissed if they use social media in a way that injures the employers interests. Second, it is no defence that an employees privacy settings are being used. Social media users are still viewed as publishers in a public realm. Third, employers are increasingly expected to regulate social media activity through HR policy.

Only because we are on topic, my twitter: leigh_howard.

See for example: Dover-Ray v Real Insurance [2010] FWA 8544; Fitzgerald v Smith T/A Escape Hair Design [2010] FWA 7358; OKeefe v Williams T/A Troy Williams The Good Guys [2011] FWA 5311; Dekort v Johns River Tavern [2010] FWA 3389; Mayberry v Kijani Investments T/A Subway [2011] FWA 3496; Stutsel v Linfox [2011] FWA 8444, [7]; [2012] FWAFB 7097.
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The paper I have provided in your conference packs (which was previously published last year in the Institute's Journal) provides a deeper analysis of these cases.2 I note that in May this year a Full Federal Court (Dowsett, Tracey and Ross JJ) is due to consider an appeal from the Fair Work Commission about a social media dismissal.3 This will be the first court (rather than tribunal) to consider the scope of an employers right to dismiss for social media misconduct in the common law world.4 The Proposed Consolidated Anti-Discrimination Law I am presently more interested how in other fields of regulation impact upon social media and the employment relationship. As an employment lawyer I read the Exposure Draft Human Rights and Anti-Discrimination Bill 2012 (Cth) (HRAD Bill) with interest. As you will be aware, discrimination laws prohibit discrimination in the workplace, and can make employers vicariously liable for discriminatory conduct engaged in by employees.5 By its very nature, social media increases the opportunity for human interaction, and increases the opportunity for discriminatory conduct to occur. Therefore, potential litigation over discrimination occurring between two work colleagues over a social media platform is an inevitability, rather than a probability. Would an employer be found vicariously liable for such conduct? The proposed vicarious liability provision in the HRAD Bill reads as follows: 57 Liability for unlawful conduct of directors, officers, employees and agents etc. Principal taken to have engaged in conduct of directors, officers, employees or agents (1) This section applies if a person (the first person) who is a director, officer, employee or agent of another person (the principal) engages

Leigh Howard, 'Yours tweetfully: social media, employment and the privacy paradox' (2012) 86(5) LIJ 32.
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Linfox Australia Pty Ltd v Fair Work Australia & Anor (NSD1623/2012, application filed 19 October 2012).
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Although the United Kingdom High Court very recently considered the legality of an employee's demotion following questionable social media use: Smith v Trafford Housing Trust [2012] EWHC 3221.
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For more discussion see above n 2.

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in conduct connected with the first persons duties as a director, officer or agent, or connected with the first persons employment. (2) The principal is, for the purposes of the provisions of this Act relating to unlawful conduct, taken also to have engaged in the conduct, and to have engaged in it for the same reasons, or for the same purposes, as it was engaged in by the first person. Exception for principal who took reasonable precautions (3) However, the principal is not taken to have engaged in the conduct if the principal took reasonable precautions, and exercised due diligence, to avoid the conduct.

This draft clause is an amalgamation of the most onerous snippets of the current-day federal discrimination law:
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To establish vicariousness, it requires a "connection" between the employee and their employment6 rather than requiring conduct which is within the employee's "actual or apparent authority".7 As a defence to liability, employers must establish that they took "reasonable precautions and exercised due diligence"8 rather than "taking all reasonable steps" to prevent the conduct.9

This section is exceptionally broad as a consequence. Broader than equivalent provisions in current-day discrimination legislation and far beyond how vicariously liability is understood at common law. On my reading, it can deem an employer liable for conduct by an employee so long as the conduct is connected with their employment. There is no frolic of their own10 to be read into this section. It potentially means that that employees or agents who act outside the scope of their authority, in complete repugnance to their contract of employment, will create the same legal liability for their employer so long as a mere connection to their work is present. So to apply this to social media: would a connection with employment be established between discriminatory Facebook comments passing from one

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Sex Discrimination Act 1984 (Cth), s. 106; Racial Discrimination Act 1975 (Cth), s.18A. Disability Discrimination Act 1992 (Cth), s. 123; Age Discrimination Act 2004 (Cth), s. 57. Disability Discrimination Act 1992 (Cth), s. 123; Age Discrimination Act 2004 (Cth), s. 57. Sex Discrimination Act 1984 (Cth), s. 106; Racial Discrimination Act 1975 (Cth), s.18A. Morris v CW Martin & Sons Limited [1966] 1 QB 716.

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employee to another? Given that this legislation must be interpreted beneficially,11 the answer is a clear yes. Direct analogies can be drawn from other cases, particularly in relation to sexual harassment. There are many cases12 where has been found vicariously liable for sexual harassment when conduct has occurred at employer-provided accommodation, at a lunchtime away from the workplace and at social activities after work. The only difference with social media is that it is online. Where an employer provides access to social media at the work place, I see no basis why the law should draw any distinction. Occupational Health and Safety Law Social media also impacts upon occupational health and safety duties. In an age of trolls and cyber-bullying, what these duties precisely require makes for interesting conjecture. Under Victorias Occupational Health and Safety Act 2004 (Vic) (OHS Act), employers must provide and maintain a working environment that is safe and without risks to health, so far as is reasonably practicable.13 That is, a safe working environment, not merely a workplace. In a world where the concept of a four-walled office is dead, a working environment clearly extends to internet use, and could extend to social media. One 'out there' but practical example I'd like to put forward is online gambling. If an employer provides internet access at-large at the workplace, and has the knowledge that employees can cause themselves harm on online gambling websites, then this duty may well be triggered in the right circumstances.14 Employers must also monitor conditions at any workplace under the employer's management and control, so far as is reasonably practicable.15
Waters v Public Transport Corporation (1991) 173 CLR 349, 359; South Pacific Resort Hotels v Trainor (2005) 144 FCR 402, 415; X v State of Tasmania [1994] HREOCA 15 (8 July 1994, Sir Ronald Wilson).
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South Pacific Resort Hotels v Trainor (2005) 144 FCR 402; Smith v Christchurch Press Company [2001] NZLR 407; Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81; Lee v Smith & Ors (2007) EOC 93-456; Leslie v Graham [2002] FCA 32.
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OHS Act, s. 21.

Caution needs to be exercised when it is uncovered that an employee is suffering from a gambling addition. Gambling addition is a mental impairment, and adverse treatment of an employee could amount to discriminatory conduct: McDougall v Kimberley Clark Australia Pty Ltd [2006] VCAT 1563, McDougall v Kimberley Clark Australia Pty Ltd [2006] VCAT 2211.
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OHS Act, s. 22(1)(b).

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Logically, employers cannot monitor and control a workforces social media activity at all times. But what employers can easily monitor is social media use that makes mention of them or where a member of the public writes to them directly. At a minimum, therefore, I think the OHS Act requires employers to monitor situations where social media use on behalf of the employer is a part of an employer's duties (for example, marketing or public relations workers). These kinds of workers are vulnerable to being subject of some very poor behaviour on social media, known as "trolling". This is particularly the case when their employer is a large corporation or large government entity. It seems to be a favourite pastime of some members of the public to throw mud on these types of employers. While no-one intends to shoot the messenger, there is a large risk that the marketing or PR employees who operate social media on behalf of their employers would take the vitriol personally. Here is where I believe an employer's OHS duty comes to the fore. I think that the duty would require an employer to:
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monitor their social media presence and identify this type of conduct; take steps to minimise and eliminate it; train their marketing and PR employees how to deal with it; make counselling available when they are subject to it; and ultimately, ensure that those who are entrusted with using social media on behalf of an employer have a 'thick skin'.

A Final Word: HR Policies One final word about HR policies. Policies addressing social media conduct is the key way to ensure that reasonable precautions and due diligence or reasonably practicable steps are taken minimise social media disasters. Just last Wednesday, Justice Buchanan issued a timely reminder about what types of things employers ought to include in a policy: Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102. His Honour was called upon to consider whether a company was vicariously liable for sexual harassment committed by one employee against another. The company had a sexual harassment policy that operated across its global operations. His Honour found the policy inadequate and the employer vicariously liable. His Honour went on to say the companys policy required advice in clear

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terms that sexual harassment is against the law and importantly needed identification of the source of the relevant legal standard.16 Following his Honours ruling, and given the possible reach of laws that I have identified this morning, I imagine that social media policies are set to become a bit more complicated.

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Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102, [163].

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