Barely a week goes by without a story in the media about
employees who have been terminated or disciplined as a result of comments they
have made on Facebook, MySpace or other social networking websites.
The explosive growth in social networking as a means of
communication is legally unexplored territory and is a source of headaches and
heartache for both employers and employees.
Nurses and midwives like everyone else, have flocked to
using social networking websites as a means of communicating with friends,
family and colleagues.
But members need to be aware that their activities on social
networking websites can come back to bite them in the workplace.
Recently the NSW Department of Corrective Services
threatened to sack prison officers over a post they made to a Facebook group
criticising their bosses and the NSW State Government's plan to privatise a
number of prisons.
Their union has accused the Department of trying to
intimidate prison officers to stifle dissent as well as invading the private
lives of the Department's employees.
In March last year a Telstra employee was disciplined
because of comments he posted on Twitter.
In recent times employees have been fired for making
derogatory comments in relation to their boss, noting that they were ‘chucking
a sickie' in their status update and criticising their boss or co-workers on
their Facebook page.
The pictures that may be posted on social networking pages,
or videos on websites such as YouTube, can also cause havoc with a nurse's or
midwife's employment. Last year a number of employees of a KFC in California
were fired after they posted images of themselves having a bath in the sink of
the KFC store where they worked.
The law has been unable yet to develop a consistent approach
to what is and is not inappropriate conduct by employers and employees in
relation to the material published by employees on social networking websites.
It is still struggling to come to grips with the conundrums
presented by social networking websites in relation to a range of legal issues
from employment law, privacy law and copyright law. In relation to employment,
this relies on possible antiquated or inappropriate established common law
The ability of an employer to discipline an employee for
out-of-hours conduct is restricted. In the decision of Rose v Telstra
Corporation Limited, Vice-President Ross of the Australian Industrial Relations
Commission (AIRC), after considering the historical aspects of the employment
relationship, provided a useful guide as to when out-of-hours conduct may be a
valid ground for termination.
VP Ross found that only in limited circumstances may an
employee's employment be validly terminated because of out-of-hours conduct.
The circumstances would have to be where the conduct was such that, viewed
objectively, it is likely to cause serious damage to the relationship between
the employer and the employee, the conduct damages the employer's interest, or
the conduct is incompatible with the employee's duty as an employee.
A recent decision in the AIRC saw an employee reinstated to
his employment at a Victorian supermarket after he was deemed to have been
unfairly dismissed for his participation in a YouTube video that showed
skylarking during the night filling of the supermarket.
Social networking websites are also being used by employers
and recruiters to screen potential employees. A recent US survey found that 45%
of employers and recruiters were conducting internet searches of applicants'
social networking web pages.
Employers have been slow to deal with the potential
implications of their employees communicating and publishing information on
social networking websites.
However, you can be certain that IT policies, codes of
conduct and other documents that regulate your employment as a nurse will soon
be updated in an attempt to ensure that you do not make comments disparaging to
your employer or breach the privacy of your patients.
Always remember that you could be held accountable for your
conduct published on your social networking page, which is accessible to the
This article first appeared in QNU's journal ‘tqn' October
2009, pp 22-23.
Case study: Victorian nurses discuss patient on Facebook
Last year ANF represented several members facing
disciplinary action and termination of employment for interaction with patients
on Facebook or discussions about patients on Facebook. In one case members from
the same ward, who were all part of the patient's treating team, had a brief
conversation on Facebook about a patient. The discussion was read by a Facebook
"friend", who was also a senior nurse at their facility, and reported it to
management. Management considered the conversation a breach of the principles
of patient confidentiality and professional boundaries. These nurses would have
been aware not to have this conversation in a public place within earshot of
other people not directly involved in the patient's care, a lift, with a taxi
driver or with friends, but the boundaries seem blurred by the still relatively
new social media. On this occasion ANF successfully argued for the nurses to
keep their jobs and that the employer provide education about using the new
Tips for using social media sites
There are a number of simple rules that nurses and midwives
should follow in relation to their use of social networking websites:
ensure the privacy settings on the website do not allow open
don't talk about confidential patient or work information on
don't post photographs of yourself engaging in illegal,
offensive, compromising or inappropriate activity
don't post photographs of yourself engaging in conduct in
the workplace which you know would be deemed inappropriate by your employer.
The same goes for comments
don't add new friends on your website when off work sick
don't become a patient or client's friend or invite a
patient or client to become your new friend
don't fake a sick day and announce it on your website
don't criticise your place of employment, clients or
patients on your website.
don't discuss clients or patients on your website.
don't use your website to criticise your employer, manager
or other workmates
don't make comments that clearly identify your employer and
bring your employer into disrepute on your website
don't update your website status about something
don't join questionable groups on a social networking
DO try to avoid using your real name on your website.