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Speech to the 2013 Law Institute of Victoria Legal Symposium

Speech to the 2013 Law Institute of Victoria Legal Symposium

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Published by Leigh Howard
Discussion of social media and its possible impacts upon Australian employment law
Discussion of social media and its possible impacts upon Australian employment law

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Published by: Leigh Howard on Mar 14, 2013
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1Legal\309451014.1
2013 Law Institute of Victoria Legal SymposiumSpeech to the
‘Social Media Disasters’ Roundtable
 28 February 2013
Leigh Howard
 
M
y purpose today is to talk about ‘social media disasters’ in the employment
law space. Social media impacts upon employment law in some verinteresting and important ways. In fact, I dare say that some of the firstjurisprudence to interpret the nature of social media was jurisprudencederiving from employment tribunals.
 The Unfair Dismissal Jurisdiction
 The first and most obvious place to start explaining the impact of socialmedia upon employment law is to consider the unfair dismissal jurisdiction. There are many cases
1
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 arezealously reported by the press. These cases confirm the trite legal maximthat
if you have nothing nice to say, don’t say it at all 
. I am not going to dwell onthese cases, but I make the following points:
o
 
First, the cases to date confirm that an employee may be disciplinedor dismissed if they use social media in a way that injures the
employer’s interests.
o
 
Second, it is no defence that an employee’s privacy settings are being 
used. Social media users are still viewed as publishers in a publicrealm.
o
 
 Third, employers are increasingly expected to regulate social mediaactivity through HR policy.
Only because we are on topic, my twitter:
leigh_howard 
.
1
See for example:
Dover-Ray v Real Insurance 
[2010] FWA 8544;
Fitzgerald v Smith T/A Escape Hair Design 
[2010] FWA 7358;
O’Keefe 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/ASubway 
[2011] FWA 3496;
Stutsel v Linfox 
[2011] FWA 8444, [7]; [2012] FWAFB 7097.
 
2Legal\309451014.1
 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 employer’s 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 uponsocial media and the employment relationship. As an employment lawyer Iread the
Exposure Draft Human Rights and Anti-Discrimination Bill 
2012 (Cth)
HRAD Bill
 ) with interest. As you will be aware, discrimination laws prohibitdiscrimination in the workplace, and can make employers vicariously liablefor discriminatory conduct engaged in by employees.
5
 By its very nature, social media increases the opportunity for humaninteraction, and increases the opportunity for discriminatory conduct tooccur. Therefore, potential litigation over discrimination occurring betweentwo work colleagues over a social media platform is an inevitability, ratherthan a probability. Would an employer be found vicariously liable for such conduct? Theproposed vicarious liability provision in the HRAD Bill reads as follows:
57 Liability for unlawful conduct of directors, officers, employeesand 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
2
Leigh Howard, 'Yours tweetfully: social media, employment and the privacy paradox' (2012)86(5)
LIJ 
32.
3
Linfox Australia Pty Ltd v Fair Work Australia & Anor (NSD1623/2012, application filed19 October 2012).
4
Although the United Kingdom High Court very recently considered the legality of anemployee's demotion following questionable social media use:
Smith v Trafford Housing Trust 
[2012] EWHC 3221.
5
For more discussion see above n 2.
 
3Legal\309451014.1
in conduct
connected with
 
the first person’s duti
es
as a director,officer or agent,
or
 
connected with
 
the first person’s employment
.(2)
 The principal is
, for the purposes of the provisions of this Actrelating to unlawful conduct,
taken also to have engaged in theconduct
, and to have engaged in it for the same reasons, or for thesame 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 theconduct if the principal took reasonable precautions, andexercised due diligence
, to avoid the conduct. This draft clause is an amalgamation of the most onerous snippets of thecurrent-day federal discrimination law:
o
 
 To establish vicariousness, it requires a "
connection 
" between theemployee and their employment
6
rather than requiring conduct whichis within the employee's "
actual or apparent authority 
".
7
 
o
 
 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 equivalentprovisions in current-day discrimination legislation and far beyond how  vicariously liability is understood at common law. On my reading, it candeem an employer liable for conduct by an employee so long as the conduct
is
connected 
with their employment. There is no
 frolic of their own 
10
to beread into this section. It potentially means that that employees or agents whoact outside the scope of their authority, in complete repugnance to theircontract 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
beestablished between discriminatory Facebook comments passing from one
6
 
Sex Discrimination Act 
1984 (Cth), s. 106;
Racial Discrimination Act 
1975 (Cth), s.18A.
7
 
Disability Discrimination Act 
1992 (Cth), s. 123;
 Age Discrimination Act 
2004 (Cth), s. 57.
8
 
Disability Discrimination Act 
1992 (Cth), s. 123;
 Age Discrimination Act 
2004 (Cth), s. 57.
9
 
Sex Discrimination Act 
1984 (Cth), s. 106;
Racial Discrimination Act 
1975 (Cth), s.18A.
10
 
 Morris v CW Martin & Sons Limited 
[1966] 1 QB 716.

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