OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT

1. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT SOCIAL MEDIA IN THE WORKPLACE - GRIEVANCES & ISSUES TO DATE Terry Lisson Director Promotion Appeals & Grievance Reviews 8 June 2011

2. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT • An NTPS Guideline has been developed (14 Feb 2011) and sets out basic requirements when using online media for work purposes. • Being apolitical, impartial and professional • Behaving with respect and courtesy and without harassment • Upholding NTPS values and the integrity and the good reputation of the NTPS • Need to maintain confidentiality • Making proper use of NT Gov’t Resources

3. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Personal Use of Social Media The difficult issues will arise in the area of employees’ personal use of social media, and in determining what sorts of conduct are inappropriate and how to deal with behaviours that may breach the Code of Conduct.

4. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Technically any use of social media on work computers could be viewed as a breach of the Code of Conduct: 11. Unless the CEO grants permission, official facilities and equipment, e.g. telephones, computers must not be used for non-government or private purposes.

5. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Realistically we accept that employees are going to use telephones and computers for some personal purposes. So as always, the test will be what is sensible – that is, we use the guide of what is reasonable. Simply put – we use common sense.

6. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Try as we will, it will be hard, if not impossible to make policies that cover all situations, especially because, generally speaking, we do not make policies that guide employees’ private activities and behaviours outside of work hours.

7. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Examples we have seen so far: Use of Facebook during work hours. Insulting or derogatory comments about workmates or supervisors Tweets disparaging the content of a workplace training session

8. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Facebook during Work Hours Employee had done all the work assigned to her and, once done, spent the rest of the day on Facebook and other personal use internet sites.

9. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT • Outcome • Suggested she use quieter times to learn more about the business, policy and procedures of the agency (?) • Made aware of Code of Conduct Clause 11 • Recommended finding something else to do e.g. clean up office space, filing • Made clear that if she continued now that she had been made aware of the policy it could result in discipline

10. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Common Sense Again the best guide is common sense. Employee needs to appreciate that appearing to have no work to do upsets others in the workplace and the public. Employer needs to recognise that some use of social media is going to occur and to be realistic about it, and clear on what the real policy is.

11. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Insulting Comments about another Employee Employee goes online during work hours and posts “Woot woot!!! My last day in my job now moving on to bigger and better places and not working with a BIATCH!!! Friend responds asking “Which biatch is that one, there are lots there so pm me or sms me and tell me which one.”

12. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Insulting Comments about other Employees (con.) Unfortunately she didn’t pm her friend or sms her, instead she responded in an open post naming the other employee – and, although her privacy settings did allow only ‘friends’ to see the post, it took about two days for a copy to end up in the hands of the person about whom the comment was made.

13. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT • Insulting Comments about other Employees (con.) • Employee claimed she had made the comment on a break, and from her own phone. (No breach of Code of Conduct 11) • While the Agency agreed that such comments were not good practice, legal advice was that it was probably not actionable and that it was a grey area as to whether the action and comment breached any provisions of the Code of Conduct.

14. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Outcome The Commissioner’s view was that such comments could be seen to be in breach of the Guidelines on use of social media and recommended that the employee be counselled as to appropriate behaviour expected of a public servant and the concerns and risks to her own career advancement by posting such messages in a ‘public’ forum.

15. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Common Sense Again – common sense is the issue for both sides in this type of situation. While NTPS recognises that people have the right to their own opinions about workmates, it becomes problematic when, instead of it just being a comment over lunch, it is posted and remains up for all the world to see, and copy, and distribute – and has the effect of upsetting another employee.

16. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Sally-Anne Fitzgerald v Escape Hair Design [2011] FWAFB 1422 : Sally-Anne was dismissed for (amongst other things) posting a blog on her MySpace page that said: “Xmas ‘bonus’ along side a job warning followed by no holiday pay!!! Whoooooo! The hairdressing industry rocks man!!! AWESOME!!!”

17. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Outcome “I do not consider the posting on Ms F’s Facebook page to be detrimental to the business. It certainly was a foolish outburst. It was also inaccurate. … Viewing of the page was limited to Ms F’s ‘friends’. I do not consider that the comments on the Facebook page in these circumstances provide a valid reason for dismissal.

18. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Disparaging Comments about Workplace Training Employee attended an “Appropriate Workplace Behaviour” Training workshop. The workshop commenced at 8.45am. At 9.30am, the employee using his phone, posted an update on his Facebook profile which said “Inappropriate work behaviour training sucks. 45 minutes into it an almost asleep”. .

19. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT In his defence, the employee admitted posting the update, however claimed that he did it during a coffee break and that the message was only able to be viewed by those who were ‘friends’ on Facebook. As it so happened, people who were ‘friends’ were also colleagues at the training.

20. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Outcome In this case the view of the agency was that this comment was another example of many other ‘attitude’ problems by the particular employee and so it was perhaps viewed more seriously than would have otherwise been the case. Concern was not so much the posting of the comment but what it reflected about the employee.

21. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Outcome Employee would have been wise to show some common sense and recognise that even though he might claim the message was private and limited to ‘friends’ that once posted it was out in the public domain.

22. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT “A Facebook posting, while initially undertaken outside work hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see [or copy and send to others]. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.”

23. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT • Legal Issues will be ‘Grey’ • Employees may argue that their posts are private and limited to ‘friends’ – but of course, some people have 400+ friends suggesting that it is not really a very private forum. • Cases suggest the test of what is inappropriate will depend on whether the comments damage the business, bring the employer into disrepute, or affect the employers trust and confidence in the employee.

24. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT CONCLUSION This is a new area, but It is clear from cases and matters dealt with so far that the individual circumstances are going to be closely considered in deciding what is a reasonable outcome. Just as is the case now with many of our policies common sense is always going to be the best guide.