Saturday, September 06, 2008

Facing up to the workplace consequences of Facebook ...

It’s only been a year since I joined Facebook. I rarely update my Facebook page, except to post articles from time to time. Online social networking just isn’t my thing.

So I was surprised to read that this:

Employers are using sites such as Facebook and MySpace to check up on their employees and research prospective staff.

It gets worse. Under the headline “Facebook frolics can burn a hole in your office kudos”, the Australian Financial Review reports on Friday 20 June 2008 reports:

In Britain, retailer Argos last year sacked an employee who made negative comments about the company on Facebook.

Closer to home, managers who have been caught out by employees announcing their resignations online before they tell the boss are regularly scouring social network sites.

You even need to be careful about how you update your status. Flippant status updates can be deceptive and even dangerous. For instance, the last time I checked, my status update read “Irfan is asleep”. Arguably, that update was misleading.

Checking up on employees who have phoned in sick is also not unknown. Networkers who regularly provide “status updates” make such surveillance easy.

But just how reliable are such updates? And just how much should HR managers rely on information on Facebook? After all, people often don’t put their real photo up on their site. And I’m not always sleeping, even if my status update says otherwise.

Many people don’t behave all terribly seriously online. Social networking lends itself to colourful expressions and hyperbole. So if your status update says you’re partying or seriously bludging, you might actually be sitting in a work meeting.

It seems even your choice of cyber-friends can cause trouble.

It might not be your own message that brings you undone.

"People bring together all sorts of acquaintances online – and that could lead to trouble," said David Vaile, executive director of the University of NSW’s Cyberspace Law and Policy Centre.

“Online friends are not necessarily friendly,” Mr Vaile said. “They may be part of a broader
group, such as a particular geography or company. They are not restricted to people you trust."
All this might explain why friends tell me some of their former cyber-friends (including friends in real-life) are cancelling their Facebook and MySpace accounts.

Words © 2008 Irfan Yusuf

Monday, September 01, 2008

Maternity leave – a huge source of labour pain for employers ...

Some years back, I was asked by an employer to advise to advise on the least risky manner in which it could dismiss a female employee who was taking maternity leave and wanted to work from home after the birth of her child. The employer was not prepared to provide such a “flexible working arrangement” to its employee for various economic and other reasons.

I was hoping to advise my client on a certain course of action based on my reading of certain case law. I had just completed and sent my advice when a report appeared in the Sydney Morning Herald about a decision of the NSW Administrative Decisions Tribunal concerning a female public servant who sought similar flexible working arrangements. That decision went in the opposite direction of my advice.

If not handled sensitively, maternity leave can cause enormous labour pain to employers. Many employers don’t realise that employees proposing to take maternity leave can often have multiple remedies available to them. Remedies include action under State and Federal Industrial legislation (e.g. Industrial Relations Act (NSW) and Workplace Relations Act (Cth)), State and Federal Anti-Discrimination legislation, common law breach of contract action, claims under State Fair Trading and Federal Trade Practices Acts and much more.

One recent case illustrates how workplace litigation related to maternity leave can be commenced by employees at all levels of seniority. The Australian Financial Review reported on Wednesday 9 July 2008 of action commenced by a doctor against multinational pharmaceutical company GlaxoSmithKline (GSK). The action claimed that GSK had breached its obligations to the doctor by demoting her after she returned from maternity leave.

The doctor’s papers filed in the Federal Court include claims GSK engaged in misleading and deceptive conduct (presumably in breach of Section 52 of the Trade Practices Act) by making certain representations to her about her future employment as a medical director. The employee was seeking orders that she be reinstated to the same position she was at prior to going on maternity leave. She is also seeking compensation as well as a court order that any statutory penalty imposed on the company for breaching the Workplace Relations Act be paid directly to her. The maximum penalty payable for breach of maternity leave provisions under the WRA is $30,000.

The AFR report also mentioned two other recent cases, all of which involved employees using multiple remedies simultaneously.

Earlier this year ... a former employee of ... Perpetual accused the company of discriminating against her and breaching her contract by making her position redundant while she was on maternity leave.

Fiona Dunn, who earned almost $700,000 a year as general manager, wholesale, lodged a claim in March involving allegations of discrimination, breaches of the Trade Practices Act and
contractual breaches, and is seeking multimillion dollar damages ...

In another maternity leave-related case, a software company that sacked an employee who was on maternity leave because it liked her replacement better was fined the maximum penalty of $30,000 earlier this year.

Employers have to be extremely careful in this types of cases. Employees facing a change in their working conditions should also obtain advice on their rights, especially before signing any proposed settlement or contract upon their return from maternity leave.

Words © 2008 Irfan Yusuf