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Linfox loses Facebook unfair dismissal appeal, but loss reveals key lessons for SMEs

It's not enough for businesses to create social media guidelines for their employees – they need to make sure they're reasonable enough to be implemented and are then checked regularly against the industry's fast-moving trends, a legal expert warns.

The warning comes alongside the latest development in the Linfox case concerning an employee who made remarks against the company on Facebook. The company's appeal against the employee's successful unfair dismissal application was dismissed yesterday.

But the appeal contains some large indicators about how businesses should go about making their own policies, including a tip that ignorance about Facebook privacy settings may become less of a problem in the future.

"One of the criticisms of the Linfox case was that it's a sophisticated company but didn't have a social media policy in place," People + Culture Strategies director Nichola Constant told SmartCompany this morning.

"If they had, the action they had taken might have been reasonable."

Fair Work Australia rejected an appeal from Linfox against an earlier, successful, unfair dismissal application made by employee Glen Stutsel.

Stutsel made comments against two managers on Facebook – comments which both managers claimed were sexist and contained racial vilification.

Fair Work Australia granted Stutsel his unfair dismissal application after he argued he did not know how public the comments were, while his counsel likened the Facebook conversation to a discussion at a pub or café.

Stutsel also pointed out his page had the highest privacy settings.

Linfox had attempted to extend its employee conduct policy to social media platforms.

But while this latest appeal was unsuccessful, it contains a number of nuanced findings that could educate businesses on how to form their own social media policies.

For instance, the panel has found that ignorance about using Facebook was a key part of the case – and may not necessarily be a defence in the future.

"The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future."

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Engel Schmidl

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