Andrew Douglas: I want to talk to you briefly about, we’ve got three cases, I’m not sure we’ve got them up as labels actually, but we haven’t.

Nina Hoang: No, they won’t be out.

Andrew Douglas: So Draskovich is a Victorian full court Supreme Court case around privacy. Before we talk too much about it, let’s just talk. There are two elements to social media. One is, is it in work or out of work? Because obviously if someone is doing something in social media on at work time it is a work-related activity. Okay?

Nina Hoang: Yeah. You’re on LinkedIn for example.

Andrew Douglas: Yeah, therefore we can keep the second question very easily on that. But what the real risk is when someone hits social media when they’re out of work. And that is the Rose and Telstra question that we’ve talked before.

Nina Hoang: About conduct.

Andrew Douglas: Yeah. So, is it something which damages their capacity to return to work? Is it something that damages the reputation of the organisation? Or is it fundamentally inconsistent with their contract of employment? So if I publish something on social media saying FCW is the worst business that ever existed which would be silly ’cause I’m an owner. But if I was to do that, it would be reasonable for the business to say, “Well, that’s absolutely inconsistent with the continuation of your employment and it damages the reputation of the organisation. Therefore, I can deal with it in a disciplinary circumstance.

So the next question that comes out drastically is, “Okay, good then am I allowed to look at a post if I have high privacy settings? Because it contains personal and sensitive information, including that view contains personal sensitive information about me. And what they said is very simply, before we get caught up in the clutter of noise that sits around this, privacy law will apply to the extent you seek to assert privacy.

So if you put high privacy settings, then you can’t easily look at that. Now that’s changed by a couple of things. One, if on that social media, you identify yourself as an employee of an employer…

Nina Hoang: That links them back.

Andrew Douglas: Or you could be reasonably said to be an employee of an employer.

Nina Hoang: Like when they wear a uniform?

Andrew Douglas: Yeah, that type of thing. Well, at that stage, you’ve torn up your privacy part.

Nina Hoang: Yeah.

Andrew Douglas: Because what you’re actually doing is representing yourself as part of the employer. But if you’re not that, and that’s what you’re actually is, then there is an exception to privacy law that says under this doctrine, “If what you said was something that creates a workplace risk or harm, that could be the organisation or to an individual. And if in us seeking your consent as we would be obliged to because of the high privacy setting, it provides you with an opportunity to eliminate or remove that post, then you’re entitled to view it and rely upon that post as a matter of law in any investigation and disciplinary process.” Okay. Now that’s not hard, is it?

Nina Hoang: It’s good, safety trumps privacy.

Andrew Douglas: That’s it. So when we look at the other cases that have come up, we’ve seen some really interesting. I think there’s the very recent case from McLeod and Project 88.

Nina Hoang: That one was so weird.

Andrew Douglas: And I’m going to refresh my memory on that. That is, yeah, the two unfair dismissal applications where they looked at social media from a person.

Nina Hoang: It wasn’t an employee.

Andrew Douglas: Wasn’t an employee. And you see at that stage, there is no lawful way that you can look at that person ’cause that is not a person who’s publishing a post whilst they’re an employee. End of story. Unfortunately, with this case law, it’s so badly argued before the commission and what comes out of the commission is so ordinary that we don’t see the underlying principles that apply.

Nina Hoang: No, ’cause they’re more focused on the fact that it was around breach of confidentiality because they were discussing salaries and stuff like that. But the way that they found the information was, you’re right, they went through a previous employee’s phone, sorry, work phone who had logged in and another employee logged in and read those posts and then reported it back to the employer.

Andrew Douglas: Yeah.

Nina Hoang: So, how could that possibly be deemed to be okay?

Andrew Douglas: Yeah, well it’s unlawful and the problem is when you get on something unlawful, the question is, are you then allowed to rely upon that in the court? And there’s a number of discretions. Draskovich has a very limited role under which you can rely on those. And that’s what the case is about. And look, we’ve seen a couple of other cases. We saw Thompson and 360 Finance, which was a guy who published some rude memes about a girl. The girl let it go the first time said don’t do it. And he went and did it again.

Nina Hoang: Yeah.

Andrew Douglas: There’s a whole lot of those cases. But where they go to her to affect somebody then and they’re out of work. Rose and Telstra says we can look at them.

Nina Hoang: Hmm.

Andrew Douglas: The next question is, is there something, is there a privacy wall that sits in front of us? And the answer is, if there is a privacy wall because there’s high privacy settings then you can penetrate that privacy where there is a risk that in the investigative process it will be damaged. By the way, this is exactly the same thinking that goes on where we stand someone down. We stand someone down, so they can’t interfere in the investigation.

Nina Hoang: Yeah.

Andrew Douglas: They’re already willing and able to work. But the law says there is an exception to protect the integrity of evidence-

Nina Hoang: Yeah.

Andrew Douglas: In the investigation. Does that make sense? I hope so, because you can’t respond.

Nina Hoang: Oh, my God.

Andrew Douglas: Oh, it’s been a long day.

Nina Hoang: Maybe we have to publish this one. Then we have to go live.

Andrew Douglas: Okay, so let’s go to the case study now. Okay? And this would be fun because Nina and I haven’t talked about this one and I did this one at between 9:15 and 9:30 this morning.

Nina Hoang: Oh, my gosh.

Andrew Douglas: I was driving.

Nina Hoang: Guns4Hire Lawyers (GL) had a strict social media policy which included a prohibition on publishing anything on social media, identifying yourself as an employee, harassing or otherwise improperly treating another employee. The policy was an off-the-shelf policy and had an out of hours coverage clause for misconduct and confidentiality clause. David, a senior lawyer, was sick and tired of the weekly performance check-ins run by a HR consultant with his principal. Rather than mentoring and developing him, it was more like a performance improvement plan.

He explained to both, it was not a helpful process. His workload was unstructured and a huge volume which meant he could never keep up, and it was stressing him. Their response was that he needs to be prioritising his work. He was feeling confused, stressed and was having trouble sleeping. After a few drinks one night he superimposed a pig’s head of the principal’s website photo with a speech balloon saying, “Yes, we love you, but here are 3,000 things we want you to give priority.”

Where did he come up with this?

It went onto his Instagram account which did not yet identify him as an employee and he had no work friends on his account. It had the highest privacy setting, and he was a member of the old St. Kevin’s rowing club, as was the HR consultant’s husband, Trevor. Trevor showed his wife, took a screenshot, and provided it to the CEO and principal. David was called into disciplinary meeting, offered a support person and then summarily dismissed by the CEO.

Andrew Douglas: There you go. How about that?

Nina Hoang: Oh, gosh. How do you come up with this? Was David’s dismissal an unfair dismissal?

Andrew Douglas: Okay. Well, what are our four tests? The first one is-

Nina Hoang: Valid reason.

Andrew Douglas: Was it a valid reason? God, it’s close to not being a valid reason, isn’t it?

Nina Hoang: I think it’s a valid reason. I think you can argue that that is misconduct.

Andrew Douglas: Okay. Well, let’s say it’s misconduct.

Nina Hoang: Yeah, I mean-

Andrew Douglas: The big D?

Nina Hoang: You bullied someone like, what do you mean? If I did that to you, that’s not okay.

Andrew Douglas: You get me there. We should be saying come to the next meeting. You’d have to read it and understand it, but you get the snort.

Nina Hoang: Okay. So, valid reason. Okay, and obviously, although it’s… We should go through the outer balance conduct and everything like that.

Andrew Douglas: Yeah.

Nina Hoang: Although he’s not made it clear that he’s an employee, the fact that it could cause harm to another person, it’s making fun of them, I think is enough for you-

Andrew Douglas: Oh, okay. We’ll stop there. The problem is it’s got a high privacy setting. No other employee. Nobody would recognise that person as the CEO.

Nina Hoang: Well, this guy recognise,

Andrew Douglas: And even though-

Nina Hoang: How else would Trevor raise it?

Andrew Douglas: Well, you guys did-

Nina Hoang: You know, there was enough there to raise the attention.

Andrew Douglas: I think you’re reading between the lines, but I’m just saying at that stage, this is not, I’m just trying to think of the name of the aboriginal, the case about the aboriginal organisation where the guy who was helping a young men with drinking, not helping him drink, but helping them managing drinking and violence, got drunk on the weekend and-

Nina Hoang: Oh, yeah, yeah.

Andrew Douglas: Yeah. Its name escapes me. It normally doesn’t. But anyway, and he was locked up and then he was terminated and the court said, “Yeah, well look, when your job is preventing people from harming themselves and harming others and you go and do just that, then you meet all three tests. You damage the reputation. It’s inconsistent with your job and you are placing others at risk.” So you get it. But he wasn’t, he was just making a comment and put a pig’s head on.

Nina Hoang: I think even if you don’t say it’s like the reputational damage, the moment it came to the principal’s attention, that’s misconduct. They know it’s about them.

Andrew Douglas: That right. Okay, I just want to test-

Nina Hoang: It causes harm.

Andrew Douglas: Yeah. Okay.

Nina Hoang: But can’t-

Andrew Douglas: So I think the real issue with this is when you look at the issue as a whole, you could not summarily terminate this guy. You could give him a warning. So it’s unreasonable. You’ve got to a stage where the punishment doesn’t fit the crime.

Nina Hoang: Yeah. Well they didn’t even do a show cause process.

Andrew Douglas: Well just pretend. Okay. But I’m saying, here, the level of naughtiness is pretty low.

Nina Hoang: Yeah. You’d give him a warning

Andrew Douglas: You’d give him a warning, and probably pork for a week. Okay. So that’s the first question.

Nina Hoang: Oh, God.

Andrew Douglas: Second, could David’s dismal give rise to a successful general protections claim?

Nina Hoang: Well, it would, the dismissal would have to have been because of a protected attribute or his safety complaint. But he isn’t, I don’t think-

Andrew Douglas: Well, you got to wonder why something either. Either the principal’s a very brittle character or-

Nina Hoang: Or he could correctly…

Andrew Douglas: Or there’s something else that’s playing on his mind, like the criticism being made of the performance improvement process and the raising of the safety issue. I think it’s got a general protection smell available.

Nina Hoang: I don’t know. I don’t think someone terminates or I don’t think there’d be terminating because he’s complaining. I think, yeah, performance maybe. But that’s not a general protection.

Andrew Douglas: No, I think he’s raised complaints. He said he doesn’t feel safe and then they get him in on a pig’s head and terminate him.

Nina Hoang: But they’re not terminating him because of that.

Andrew Douglas: But remember, what I was saying is it’s going to be hard to sell it.

Nina Hoang: I would defend this case against you.

Andrew Douglas: Oh, no, you defend any case though, particularly some of us wearing a pig’s head. Could David have brought a workers’ compensation claim because of the poor conduct of the HR consultant?

Nina Hoang: Yeah.

Andrew Douglas: Yeah. Absolutely. And a winner too, I would’ve thought.

Nina Hoang: Yeah.

Andrew Douglas: Absolute winner.

Nina Hoang: Yeah. And definitely safety breaches.

Andrew Douglas: Okay. Talk me through the safety breach.

Nina Hoang: Well, he’s identified several psychological hazards. You know, there’s high workload, he’s not clear on his expectations, no support. They’re just telling him to just do-

Andrew Douglas: No reward and recognition.

Nina Hoang: Yeah.

Andrew Douglas: Yeah.

Nina Hoang: Just constant and he’s sought extra help with it and they’ve just refused him. So I think, yeah, in that case it’s definitely-

Andrew Douglas: Yeah.

Nina Hoang: Safety process.

Andrew Douglas: I think if you’ve got that many safety problems, your general protection is starting to look a little bit better.

Nina Hoang: But it has to be because of that. That’s the missing thing.

Andrew Douglas: Yeah, that’s not the way it plays out though, is it?

Nina Hoang: Oh. All right. Thanks for joining us in one of our really weird, Friday Workplace Briefing.

Andrew Douglas: Yeah. Thank you for tolerating that too.

Nina Hoang: What happens when I come back?

Andrew Douglas: The pig’s head, what can I say? You know, the godfather could’ve been a horse’s head. But this one’s a pig’s head, all right?

Nina Hoang: Thanks for watching.

Andrew Douglas: I’ll be back then.

Nina Hoang: Give us a thumbs up.

Andrew Douglas: Yeah, give us a thumbs up. See you later. Bye-bye.

Nina Hoang: Bye-bye.