All Smiles: company’s emoji plan

By Andrew Hobbs on October 4th, 2017
  1. Social Media Policy

A MEMO reminding company employees to be careful about what they ‘liked’ on Facebook and what reactions they posted online went viral recently as discussions of an enterprise agreement were taking place.  Holding Redlich lawyer Lauren Drummond looks at the issue.


In April 2015, the Aurizon Group successfully applied to the Fair Work Commission (FWC) to terminate its enterprise agreement during a stalemate in bargaining negotiations about a replacement agreement. On appeal to the Full Federal Court the termination was approved.  This landmark decision has paved the way for similar termination applications, a strategy that has sparked heated responses from trade unions.

In early August 2017, Unilever (the owner of Streets ice-cream) made an application to the FWC to terminate an enterprise agreement in place at one of its Sydney plants.  The company and the workers, along with their union representatives, had been engaged in enterprise bargaining negotiations since the agreement expired in August 2016.

Given the high-profile and iconic nature of the Streets brand, as the makers of Magnum and Paddlepop, the relevant unions have embarked on a social media campaign about the dispute and encouraged consumers to boycott Streets’ products.  Unilever also took steps to curtail employees’ misconduct by reminding them of the terms of its social media policy.

Social media policies in the workplace

Employers have a legitimate interest in regulating out of hours conduct of employees where there is a connection to the employment.  Typically, this includes conduct that has the potential to harm the employer’s business, including by causing damage to its reputation.

It is not uncommon for employers to have a robust social media policy.  Such policies set out an employer’s expectations regarding communications and interactions on social media by their employees, including by specifying those behaviours that may attract disciplinary action.  However, whether the employer can ultimately take disciplinary action will depend on whether or not there is that sufficient connection between the conduct and the employment relationship, irrespective of the terms of the policy.

The Unilever memo

Unilever indicated that the following types of employee conduct were regulated by its policies:

  • ‘Sharing’ posts by another person or organisation;
  • ‘Commenting’ or ‘liking’ a post made by another person or organisation;
  •  Using ‘emojis’ in response to a post by another person or organisation;
  • Activities on a social media account with restricted privacy settings.

It would be difficult for an employer to prove that an ‘emoji’ or a ‘like’ by an employee in response to an article or social media post could have the requisite impact on its reputation.  Further, the actual representation being made by an employee if ‘sharing’ or using an ‘emoji’ may be difficult to discern.  This is because it does not necessarily follow by sharing the article that the employee agrees or disagrees with the comments being made.   By comparison, an unequivocal statement by an employee that a company has behaved poorly or that its products should be boycotted is conduct more likely to harm the business.

Privacy settings are also not a failsafe.  Social media communications have the potential to become publicly shared, irrespective of the author’s intent to keep it private.  In circumstances where this has occurred and the content of the communication has potential to cause damage to the company’s reputation, there may be basis for disciplinary action.  This will be assisted by a well drafted and appropriate social media policy.

– Lauren Drummond, Holding Redlich

Managing social media risk

The rise of Facebook, Twitter, Instagram, Snapchat and myriad other forms of social media has represented a significant shift in the way we communicate with each other.

But they also make it possible for a stray comment or momentary grievance to spread far beyond its intended audience – and even once deleted, there is no reason to believe the comment may have disappeared.

To give businesses recourse should a comment damage your reputation, an effective social media policy is vital – but what to put in it? What risks do you have to look out for?

Social Media & The Law is a 44-page eBook which spells out what you need to know to use social media for your business and what legal risks social media use might expose you to.

The handbook, written by Holding Redlich partner Charles Power, also covers how to regulate your employees’ social media use and how to enforce your social media policy.

Not knowing how to manage social media in your business, and as used by your employees, can be costly and disruptive. Secure some extra assistance by consulting the Social Media & The Law eBook. Get your copy today.


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