Careless talk costs lives!

Well, not lives perhaps, but certainly jobs, according to a recent decision by the Fair Work Australia Commission. An employee was recently sacked from her job for spreading rumours about her employer's alleged sex and drug habits. When she claimed "unfair dismissal" to the employment tribunal, the tribunal found that such a breach of trust on the part of the employee fully justified the employer's decision to terminate her employment.

Whilst this case is interesting enough by itself, it is merely the latest in a growing list of cases coming before the courts, both here and abroad, which feature actions brought where defamation, or loss of business, are claimed to result from what has become known as 'water-cooler' gossip. And the ramifications for both sides are potentially quite serious.

As an employer, you cannot (even if you want to) monitor every aspect of an employee’s actions during their period of employment. The 'policing' that would be required, not to mention the cost of employing extra staff and the oppressive atmosphere this would cause in the workplace, would be counter-productive and probably damaging to the business.

So you have to take your employees on trust to some extent and assume that, whilst they are at work, they will do what they should and in the way that they should. And, for the most part, that approach works.

Unfortunately a small minority of employees will not want to work to such a standard. Often, they will be the less capable workers, putting in less effort than is needed, and if you couple that with a fertile imagination it is easy to see how rumours, and especially malicious ones, can start.

But an employer needs to be able to protect their position, and whereas a disaffected employee used to simply spread their stories to a few people, at the coffee table perhaps, now the use of the internet and social networking sites means that the 'personal' tittle-tattle can now be read, instantly, by hundreds or thousands of people.

That is why we are now seeing legal actions being taken in this area – because a defamatory comment about an employer to one or two people, with little real damage arising, has turned into the potential for legal action, with the potential for significant damage to the reputation of the person being defamed, and/or significant financial loss to the organisation concerned.

So what can be done?

If you are an employee, you must at all times be aware that, just as potential employers may look at Facebook, or Twitter, or similar sites, to find out about your background before deciding on whether or not to hire you, they can also look at posts on social media to see if you are saying anything derogatory about the firm, or particular individuals in the firm. If you are, then you could be dismissed from your employment. And that might turn out to be the 'best' part of your punishment, because if you have done some serious damage to the firm's (or the individual's) reputation, perhaps causing financial loss, or (say) a relationship to break up, then you could be faced with legal action, the cost of financial losses and legal fees could be awarded against you. The advice here is to be aware that anything say or publish about a colleague / boss / company may come back to haunt you. Stick to the facts, and don’t partake in gossip.

At Skye Recruitment, we are aware of the problems that can arise and would suggest to employers that you review existing contracts of employment and include a provision that, if an employee is found to have, verbally or in writing, made comments about the firm and / or any of its employees past and present which could be viewed as derogatory or damaging in any way to the status or reputation of the firm (or employees) or which could result in any financial or other loss, then the firm's formal disciplinary procedures will immediately be invoked. This could result in the dismissal of the employee, and does not preclude the firm from commencing legal proceedings against the employee.

This may sound a bit draconian, but careless or malicious gossip can be severely damaging to a company, especially as so many businesses depend on overseas relationships for their trade, and all social media are international in their usage and readership.

Any business which has a staff manual, or the equivalent, in circulation (and if you haven't, why not?!), should include reference to this topic, because there is always an implied duty of trust in the relationship between employer and employee and it is important that everyone knows that and knows where the boundary is between day-to-day moaning and the more sinister side of gossiping.

So, create a social media policy for all staff, and make sure they read and understand it, perhaps circulating it once every six months or so as reminder. At the first sign of a problem, invoke the appropriate part of the contract of employment, if you’ve covered this aspect, and carry out a first formal interview (and warning, if appropriate) under the disciplinary procedures. Ensure that all is fully documented, and signed and dated as a true record by both employer and employee, in case documentary evidence is subsequently need for a tribunal or court case.

For employees the basic message is "don't be stupid!" If you want to say something negative about your employer or colleagues, don’t say it in a roomful of people, or put anything on the internet which your employer might read or get to hear about.