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Have you stopped and thought about the impact that having no Social Media Policy could actually have on your organisation? Take the case of Stutsel v Linfox Australia Pty Ltd.

In April 2012, a truck driver at Linfox, was dismissed for serious misconduct. His termination came as a result of comments posted on his Facebook profile concerning two of his supervisors, which were racially derogatory and sexual in nature. The main issue in the case was whether the man’s actions constituted serious misconduct. A further issue was whether the termination was harsh, unjust and unreasonable. The truck driver sought to be reinstated to his position.

The court highlighted that at the time of the incident Linfox did not have any social media policy and further it still remained without a policy at the time of the hearing. Commissioner Roberts commented about the lack of policy that “in the current electronic age, this is not sufficient and many large companies have detailed social media policies and have taken pains to acquaint their employees with those policies.”

While the court found that the truck drivers comments were distasteful and regrettable it was held that he was not guilty of serious misconduct and there was therefore no valid reason for his termination. The court also noted the inequitable treatment of Mr Strustel, The truck driver,  as some other Linfox employees who had posted comments on his wall had not received the same treatment. For this reason the termination was also held to be harsh, unjust and unreasonable.

If a social media policy had been in place the conduct may have constituted serious misconduct and thus warranted termination.

Submissions by the Applicant

  • During the Arbitration proceedings, the Applicant gave sworn evidence and submitted a witness statement which stated (among other things) that:
  • His wife and his daughter had set up his Facebook account;
  • he thought that Facebook was a place where he could privately interact with a group of people who he had accepted as Facebook ‘friends’;
  • He was told by his wife and his daughter that they set up his account with full privacy restrictions and that to his knowledge, nothing he said or did could be seen by anyone but the people he had invited to be his Facebook ‘friends’;
  • He was not sure how one of his managers was able to access his Facebook account as he did not, nor did his wife or his daughter change his privacy settings; and
  • He was not aware of any Company policy regarding Facebook, other than a general direction that it should not be accessed during work time (as opposed to breaks).

Submissions by the Company

The submissions made on behalf of the Company argued that the derogatory comments breached:

  • The implied terms of the Applicant’s contract of employment, which provided that he:
  • Act with good faith and fidelity;
  • Had breached the required obligation of trust and confidence;
  • Promote his employer’s business interests; and
  • Not take any action which would damage his employer;
  • The Company’s Workplace Diversity policy; and
  • Clause 6.1 of the Equal Opportunity and Diversity statement contained in the Linfox Red Book Induction which was provided at the Company’s induction program, which the Applicant had participated in.

Decision

Commissioner Roberts concluded and found that:

  • At the time of the Applicant’s dismissal, the Company did not have any policy relating to the use of social media by its employees;
  • Even by the time of the hearing, it still did not have such a policy;
  • The Company relied on its induction training and relevant handbook to ground its action against the Applicant; and
  • In the current electronic age, this was not sufficient as many large companies have published detailed social media policies and have taken pains to acquaint their employees with those policies. Whereas, the Company did not.

Consequently, it was held that:

  • There was no valid reason for the termination as the Applicant was not guilty of serious misconduct; and
  • The termination of the Applicant’s employment by the Company was harsh, unjust and unreasonable.
  • Therefore the Company was ordered to:
  • Reinstate the Applicant to his former position, with full continuity of employment; and
  • The Applicant be compensated.
  • This case should be a reminder to all employers that social media policies should not be seen as luxuries but as necessities. Comprehensive social media policies not only set guidelines for the online conduct of employees during and after work hours but they may protect an employer against unfair dismissal claims.

Collective consciousness is a term I have heard in many conversations in and around Byron Shire for most of my life. It is not some hippie free love term that was created during the Aquarius festival in Nimbin in the late 60s, but a technical term that refers to how any given individual comes to view them self as a part of any given group. The term has been used by social theorists/psychoanalysts such as Durkheim, Althusser, and Jung, to explain how an autonomous individual comes to identify with a larger group/structure, often through collaboration and contribution to a community; effectively, how they come to “belong”.

Byron Bay has a very strong collective consciousness. It is in fact the pulse of our community. The diversity and abundance of smaller communities within Byron Bay makes the community unique, and unlike anywhere else on the planet. Just spend a little time here, and you will soon see the way each person, each group, each tribe and each community is aware of the other, and how they interact and feed off of each other’s often radically different needs and possibilities.

Byron was once a small seaside town, financially sustained by Norco, a whaling station, an abattoir, sand mining and a fledgling surfing industry, where everyone knew everyone else. Through word of mouth Byron Bay became a world famous tourism destination, known for its unique and beautiful landscapes, and the charm of its ever vibrant, diverse and dynamic community.

Our sense of community, like our community itself, is constantly changing and evolving. It changes daily, almost in front of our eyes. Technology, in the last 10 years has created a new collective consciousness paradigm, enabling a truly global society; which allows us to extend our community beyond any border. “We are now sharing a collective mind” the love child of the Internet – the Social Media Network.  And where better for a love child to grow and thrive than in a community such as we have here in Byron Bay? The Social Media Network, this new global collectiveness tool, compliments and augments our own collective consciousness.

When my father Max Pendergast was a man in his 20s, surfing The Pass in the early 1960’s, the thought would not have even entered his head that one day ‘surfing’ would have a whole new meaning. Nor I am sure would he have believed for one second that he could be talking to me through a laptop computer, real time, from an island in the middle of the South Pacific, whilst I was sitting in my office in Australia. He could not have fathomed the idea of sharing real time video, photographs, music, and conversation from wherever he was in the world, whenever he wanted to.

Communities that collaborate and communicate through, and take advantage of technology are the new thought leaders. Where we once lived in a community that recommended products and services through “word of mouth”, the term is now “world of mouth”, and businesses in particular that are not keeping up will be left in the dust wondering what just happened.

We have the world at our fingertips. Our family, friends, colleagues, and customers are all online, all connected and all talking through the collective mind that we call Facebook, Twitter, StumbleUpon, and YouTube, among some of the many and varied social media out there on the Internet. For every single person that travels through Byron Bay in the 18-40 age group, the most preferred method of communication with their friends and family ‘back home’, the is Social Media Network. This is a fact. An exciting fact full of possibilities.

Oxford University Studies have proven that the brain is wired to a point that it can only competently manage 150 friendships at a time, so using that number 150 as a minimum amount of connections each person has on Social Media networks, multiplied by that number of people travelling through Byron Bay each year, we quickly end up with a number in the 10s of millions.  And all these people are being exposed either directly, or indirectly to the wonder of our Byron Bay. The power of Social Media Networks means that images of our little seaside home can become the two minute day dream vacation for a lawyer at work in New York City, viewing photographs and videos posted to Facebook, or Twitter, or FlickR or any number of social media applications, by a friend who is actually in Byron Bay surfing at The Pass, and living the experience that now becomes a priority on the holiday wish list of our lawyer friend in New York.  And this all happens literally in a nanosecond.

As with all communities around the world, satellite communities that provide support services spring up and flourish. This is the same with the Internet and the Social Media Network. The Internet provides an environment where our lawyer friend in New York, after seeing what a great time his friend is having in Byron Bay, can go ahead and book flights and accommodation, buy travel insurance and even a new pair of boardies, and come on over.

Like our own Byron Bay, the Social Media Network is growing organically and exponentially. Growing and flourishing, feeding off its own creativity and innovation. Inclusive, inspiring and dynamic.  The opportunities for utilizing the same talents that have helped create a place such as Byron Bay, to leverage the unlimited possibilities of the Social Media Network, are limited only by our imaginations.

And we all know that here, in our magical corner of the Universe, the imaginations are boundless.