Posted: September 13th, 2017

RESEARCH ESSAY;

WORK 2205 RESEARCH ESSAY;

This task involves researching, writing and submitting a formal essay not exceeding 2,500 words of main text. Please keep to the word count and do not go one word over 10% above 2,500 words or you WILL be penalised. The essay assessment provides you with the opportunity to critically engage with the HR literature on the psychological contract and apply it to the processes of HRM in the Metropolitan Fire & Emergency Services.  The essay  requires you to answer this question about how the PC links to the use of social media in the Metropolitan Fire & Emergency Services. In answering the question please undertake some original research by sourcing your own readings doing keyword searches through journals listed at the back of this document or via keyword searches on the library catalogue. I have listed some academic readings below that will get you started but original research starts with sourcing your materials independently. The case is also listed below. I have also copied in five other cases that have come before the Fair Work Commission. These cases are not directly relevant to the firefighters case or the topic of the psychological contract necessarily, because they deal with other issues. I include these PURELY to give you a sense of what types of grievances are ending up in the Fair Work Commission.
ESSAY QUESTION
As this Fair Work Commission case below highlights, much disagreement can erupt around the use of social media in the workplace. Present the current issues around the use of social media in the workplace and outline what you would do as an HR manager to best manage the use of social media in the Metropolitan Fire & Emergency Services.  Please include both HR policies and practices that you think may have reduced the chance of this grievance being lodged at the Fair Work Commission

THE CASE: Metropolitan Fire & Emergency Services
(In your essay please reference this Fire & Emergency case)
Metropolitan Fire & Emergency Services Case: Firefighter internet ban in FWC, Decision Fair Work Act 2009, s.185—Approval of enterprise agreement, Metropolitan Fire & Emergency Services Board, [2010] FWAA 7414

The Fair Work Commission has been asked to rule on whether Melbourne’s Metropolitan Fire and Emergency Services Board was obliged to consult its workforce and the firefighters union before issuing a directive limiting non-business internet use to one hour per day.
Commissioner Julius Roe heard argument from the parties yesterday, with the United Firefighters Union arguing the MFESB had not met its consultation obligations under clauses 15 and 30 of the MFESB, UFU of Australia, Operational Staff Agreement 2010 when it tried to introduce the restriction on December 10 last year.
The restriction is not currently in place, as the union initiated a grievance under the agreement in January, which required the parties to maintain the “status quo”. The union says the proposed restriction is a change in a matter pertaining to the employment relationship under clause 15, and/or a change in policy under clause 30, in both cases enlivening the MFESB’s consultation obligations under clause 13.
The Board told firefighters in December that they would be allowed a maximum of 60 minutes per day on social media (including Facebook and Twitter), personal banking, online newspapers, shopping and auction sites. The UFU provided evidence to Commissioner Roe from firefighters that aside from a ban on pornographic and other inappropriate sites, personal internet use had not been time-restricted before last year’s announcement.
The firefighters say they are concerned the restriction will be applied too broadly, and that access to sites used for peer group support and health and wellbeing information will be denied.
The MFESB argued it was not required to consult over the issue because it had not altered existing policies or instituted any workplace changes. Alternatively, it said it had met any consultation requirements by complying with a recommendation issued by Commissioner Roe following a conciliation conference in February.
Commissioner Roe has reserved his decision.
UFU Victorian branch secretary Peter Marshall said the restriction had unintended consequences during the two days that it was in place before the union lodged its grievance.
He said community safety messages from the emergency control centre had been blocked, and workers doing MFESB projects were required to seek management approval to maintain internet access beyond 60 minutes.
Marshall also said firefighters often had to be “out the door in 90 seconds”, and wouldn’t have time to turn their computers off to comply with the restriction.

Readings that relate to the Psychological Contract
•    Textbook pages 14-15 for definition of the psychological contract
•    Textbook chapter bibliographies for particular aspects of HRM you choose to address
•    Cullinane, N and Dundon, T (2006) ‘The Psychological Contract: a critical review’, International Journal of Management Reviews, 8(2), 113-129
•    Robinson, S.L. & Rousseau, D.M. (1994), ‘Violating the Psychological Contract: Not the Exception but the Norm’, Journal of Organizaional Behaviour, 15, 245-259.
•    Rousseau, D. (2001), ‘Schema, Promise and Mutuality: The Building Blocks of the Psychological Contract’, Journal of Occupational and Organizational Psychology, 74(4), 511-544.
•    Sims, R. (1994), ‘Human Resource Management’s Role in Clarifying the new Psychological Contract’, Human Resource Management, 33(3), 373-82.
•    Turnley, W.H. & Felman, D.C. (1999), ‘The Impact of Psychological Contract Violations on Exit, Voice, Loyalty and Neglect’, Human Relations, 52(7), 895-922.

Readings that Relate to HRM, Social Media and Fire fighters
Please do keyword searches in the library catalogue to source relevant material here as developing research skills are part of the exercise. The list below is only to get you started.
•    Hytten, K., & Hasle, A. (1989). Fire fighters: a study of stress and coping. Acta Psychiatrica Scandinavica, 80(s355), 50-55.
•    Maron, D. F. (2013). How social media is changing disaster response. Scientific American. http://scientificamerican.com/article.fcm?id=howsocial-media-is-changing-disaster-response
•    Husin, M and Hanisch, J (2011) Social Media And Organisation Policy (SOMEOP): Finding The Perfect Balance’, ECIS 2011 Proceedings. Paper 253. http://aisel.aisnet.org/ecis2011/253
•    Dutta, S. (2010). What’s your personal social media strategy. Harvard Business Review, 88(11), 127-130.
•    Jacobson, W. S., & Tufts, S. H. (2013). To Post or Not to Post Employee Rights and Social Media. Review of public personnel administration, 33(1), 84-107.
•    Potts, D. H., & Teeter, J. H. Managing Social Media in the Workplace.

The following cases are not directly relevant to the firefighters case or the topic of the psychological contract necessarily, because they deal with other issues. I include these PURELY to give you a sense of what types of grievances are ending up in the Fair Work Commission.  (If you do refer to any of these cases in your essay please reference these cases Workplace Express Case 1 etc)
1.    Workplace Express Case 1: Social media policies impinging on privacy, freedom of expression, Friday, August 29, 2014
Social media has disrupted the distinction between employees’ work and private lives, yet the social media policies of many Australian organisations don’t take privacy and freedom of expression into account, according to a leading academic.
Macquarie University Associate Professor Louise Thornthwaite told the 22nd Annual Labour Law Conference in Sydney this week that there was “very little consideration given to date” on whether the social media policies developed by employers and law firms interfered with employees’ privacy and freedom of expression expectations.
She said policies commonly included clauses that “basically curtail the freedom of employees to talk about work and working conditions and their employment relationship in their personal time, even in off-duty and personal social media forums”.
Thornwaite gave as an example two policy clauses, which she said were “pretty common”. One states that: “while it is fine for [employees] to disagree …. please don’t use your external blog or other online social media to air your differences in an inappropriate manner”.
The second states that: “In their personal use of social media, employees, volunteers or supporters who do not identify themselves as affiliated are still counted as representing the organisation and must comply with [the organisation’s ] ethics and guiding principles for social media use”.
Thornwaite said individuals in Australia largely had an expectation of privacy, and they behaved according to that expectation. However, there was limited privacy regulation in Australia, and it was mainly concerned with regulating control of information.
This contrasted with a number of other countries, where the right to privacy was based on dignity and the requirement for people to be able to build relationships.
She said privacy and freedom of expression issues had consequently found their way into employment court and tribunal decisions overseas to a greater extent than in Australia.
In the UK, for example, the right to privacy was “encroaching” into unfair dismissal law, while in the US a number of social media policies and policy clauses had been held to violate the National Labour Relations Act by curtailing discussions about rights and employment relationships.
She said that the “sorts of discourse around this issue will change, and possibly should change, given the problematic nature of social media”.
Thornwaite said she was not “suggesting for one moment” that cases where employees had been sacked for offensive behavior on social media – such as Cameron Little v Credit Corp Group Ltd (see Related Article) – had been wrongly decided.
And, she noted that the Fair Work Commission and its predecessor had made some rulings protecting privacy and freedom of expression.
In Broadmeadows Disability Service, for example, the tribunal refused to allow a clause into an agreement because it extended to private conversations about employment.
And in Wilkinson-Reed v Lantoy Pty Ltd the tribunal found unfair the sacking of an HR manager whose boss had discovered she was criticising him after he hacked into his estranged wife’s Facebook and read her private messages (see Related Article).
However, she continued that there were “issues that need to be discussed” in Australia when it came to regulating employees’ social media use

2.    Workplace Express Case 2: Social media ignorance less likely to get employees off hook: VECCI director, Monday, February 10, 2014
Courts and tribunals are becoming less forgiving of employees who misuse social media as awareness of the public nature of the various networks grows, a senior employer official has told the IR academics national conference.
Speaking at the AIRAANZ conference in Melbourne on Thursday, VECCI executive director Richard Clancy said the FWC’s Little v Credit Corp Group ruling late last year (see Related Article) suggested that decision-makers were holding employees to “higher standards of behaviour due to increased awareness in relation to the impact of social media”.
In the Little case, Deputy President Peter Sams described the sacked employee’s claim that he was unfamiliar with how Facebook worked as “highly implausible” from a young person who was a regular user of the site.
Clancy contrasted this decision with the earlier Stutsel case in which the FWC found a Linfox truck driver was unfairly dismissed for making offensive comments on Facebook, accepting arguments that he had a limited understanding of the implications of using the site (see Related Article)
The full bench issued a warning in that case that the older worker’s claim of ignorance “might be more viewed differently in the future”, with “increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies”.
Other FWC cases in Clancy’s analysis included O’Keefe v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys (see Related Article), Fitzgerald v Smith T/A Escape Hair Design (see Related Article), and last month’s Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota decision (see Related Article).
Clancy said VECCI provided a social media checklist to its members that recommended they: develop and implement a comprehensive policy;outline their expectations and train employees;act promptly in response to suspected breaches;investigate breaches thoroughly;closely examine the communication’s connection with the workplace;consider the employee’s response; andweigh up the contravention against other relevant factors in deciding whether dismissal is warranted.
He said the policy should set out what business use of social media was authorised, and what constituted reasonable personal use. It would ideally include an explanation of the different social media sites, he said.
Clancy said it should also establish rules for conversing on line, including that any comments are accurate and not misleading, do not harm the employer’s reputation, and do not infringe other policies or relevant laws.
Another issue increasingly faced by employers was what to do about employees adding customer contact details on their LinkedIn pages, Clancy told the conference.
He said that those details had the potential to disadvantage the company, either during or after the employee’s employment, and the use of LinkedIn should therefore be addressed at the recruitment stage, with follow up audits of activity on the site.
While not relevant to all employees, post-termination restraints might also be advisable, he said.

3.    Workplace Express Case 3: Risk-averse” regulation of social media posts won’t work, says public service commission Tuesday, December 10, 2013
Australian public service agencies need to develop “more mature and nuanced approaches” if they are to successfully manage employees’ comments on work-related issues through social media, the APSC has warned.
According to the State of the Service Report 2012–13 (see chapter 3), APS agencies adopting “wholly risk averse” positions based on advice to employees not to make any comment if in any doubt about propriety are “unlikely to be conducive to harmonious working environments, or to building the capacity for sound decision making”.
The report says that recent examples of public servants being disciplined or dismissed after making online comments (see Related Article) and an increasing number of public servants seeking advice about using social media shows that this continues to be an “area of some uncertainty” for agencies and employees.
“While there are some clear cases in which unofficial public comment by APS employees is unacceptable, there are also many that are far less clear,” the report cautions.
With no “single, simple answer to the question of what an APS employee may post online”, work needs to be done, the report says, to develop the capacity of agencies and employees “to consider and weigh individual issues as they arise”.
In his overview, Commissioner Stephen Sedgwick also raises the issue, saying that agencies need to train employees to exercise good judgement by using scenarios that are “relevant to employees in the range of circumstances in which they may wish to comment online”.
He said that recent misconduct action taken against an employee whose online comments about public policy issues were considered a reputational risk for both himself and his agency also showed that, despite the employee’s use of a pseudonym, “anonymity cannot be guaranteed on the web (and in any event does not give an employee the right to engage in behaviour that is inconsistent with the APS Code of Conduct)”.
Sedgwick said that many agencies now have social media policies, but he urged them to also seek advice from the Commission in considering how APS values, employment principles and the service’s code of conduct apply when employees make public comments in a private capacity.
He said that establishing a connection between an employee’s private behaviour and their employment needs to be done “on a case-by-case basis, having regard to all the circumstances”.
Sedgwick said the recent Federal Circuit Court ruling that public servants do not have unfettered rights of freedom of political expression was “consistent” with APSC guidelines for agencies which set out that, while APS employees have the same right to freedom of expression as other members of the community, they are also “subject to legitimate public interests, such as maintaining an impartial and effective public service in which the community can have confidence”.

4.    Workplace Express Case 4: Union concerns trigger Commbank rethink on social media Monday, February 07, 2011

The Commonwealth Bank has softened its social media policy after the FSU warned that its attempts to curtail employees’ use of online tools such as Facebook and Twitter could breach IR laws.
Late last year the bank introduced a workplace policy that required its employees when using social media such as social networks and blogs to “act in the Group’s best interests at all times”, including outside of work hours.
That led the Finance Sector Union to last week blast the bank for breaching the Fair Work Act – it argued the policy impinged on employees’ union and workplace rights – and misrepresenting employees’ contractual obligations.
The bank responded this morning by announcing it had amended its social media policy, pending a meeting with the union to discuss its concerns expected to take place next week.
A spokesperson said the bank had made the interim amendments to the policy to “address some of the issues raised to ensure that our staff continue to be treated fairly.”
Significantly, the revised policy no longer requires employees to immediately notify their manager if they discover inappropriate or disparaging material posted by any person – including non-employees – via social media.
Instead, it states that: “if you become aware of any such material which may damage the Group or its reputation, it would assist us if you would immediately notify your manager”.
A passage that has also been removed suggested an example of such material could be “your friend could post an inappropriate comment about the group on your Facebook page or create a blog about the group”.
Another important change qualifies the original policy’s requirement that employees refrain from using social media to comment on or post information about “the terms and conditions of your employment, other employees or contractors and information about the work being performed”.
The revised policy narrows down the restricted subject matter to only that “belonging to the bank” and dealing with “confidential terms and conditions of your employment and confidential information about your work” that is not otherwise publicly available.
Mandatory language has also been softened in a number of places. For example, where the original policy told employees “you are required to act in the Group’s best interests at all times”, it now says it wants to “ensure that employees take great care to avoid [having a negative effect on the Group] by acting in the Group’s best interests when online”.
The bank’s warning about the disciplinary consequences that could flow from a breach of the policy has also been amended to clarify that employees risk dismissal only in serious cases.
However, it has retained other some aspects of the policy that drew criticism from the union, including a stipulation “even when not discussing Group related matters, if you engage in inappropriate conduct it may still have an impact on your employment with the Group”.
A FSU spokesperson said it was too early to say whether the changes had addressed its concerns and that it would seek advice on the revised policy.
“We’re pleased that the bank has taken on board the concerns that were expressed and seem open to reviewing the policy and rewriting it to some extent, but we still have to look at it very closely to make sure the new wording protects our members working at the bank,” she said.
Union warned of adverse action breaches
FSU campaigning and bargaining director Wendy Streets raised concerns about the original policy in a letter last week to Commonwealth Bank workplace advisory group head Mark Wilde.
Streets said the policy failed to take into account protections the Act’s adverse action and freedom of association provisions afforded to employees engaged in industrial or union activities.
“Such activity includes their participation in social media channels facilitated by the FSU in respect to their terms and conditions of employment and those in the industry generally.”
The policy exposed employees engaged in such activity to disciplinary action, she said, potentially breaching the prohibition on adverse action at s346 of the Act.
Streets said it might also have impinged on the ability of FSU workplace representatives at the bank to carry out legitimate union work involving social media contrary to s340 of the Act.
The unions further concerns about the policy included that it could:
misrepresent employees’ obligations under their employment contracts by suggesting “inappropriate conduct” engaged in online, even if unrelated to the bank, could affect their employment;
exceed employees’ contractual duties of good faith loyalty by requiring them to monitor and report on comments about the bank by other social media users, including non-employees; and
discriminate against employees on the basis of their political views or activities in a way that could breach state equal employment laws.
5.    Workplace Express Case 5: Conscientious objector to social media restrictions loses his job, Tuesday, January 21, 2014,
The Fair Work Commission has emphasised that employers can insist workers comply with social media policies that regulate conduct outside the workplace, in upholding the dismissal of an employee who refused to sign an acknowledgement that he had undergone social media training.
Commissioner David Gregory said the acknowledgement did not commit the worker to abiding by the policy; “it simply required him to acknowledge he had read and understood it”.
He also rejected the worker’s argument that the company was not entitled to “constrain him whilst not at work” as it was difficult to see how such a policy could “operate in an ‘at work’ context only.
“Is it suggested that an employer can have a policy in place that seeks to prevent employees from damaging the business’s reputation or stopping them from releasing confidential information while at work, but leaving them free to pursue these activities outside of working hours?”
Commissioner Gregory said employees accept some obligations as part of their employment relationship that apply “whether they are at work or involved in activities outside of working hours”.
Linfox requires all employees to attend a social media policy training session in relation to the policy.
The worker attended a group training session but, after not signing to confirm his attendance, he received one-on-one training. At the completion of this session, he refused to sign that he had read and understood the brochure outlining the policy because, he told the hearing, “as Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech”.
Commissioner Gregory said establishing a social media policy is a “legitimate exercise in acting to protect the reputation and security of a business” and makes clear to employees what is expected of them.
“Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees,” he said.
Commissioner Gregory noted that Linfox had previously been criticised for failing to have a social media policy in place (see Related Article).
He accepted Linfox had a sound basis for sacking the worker, who had been employed in its distribution centres for four years, because of a “consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with the policies and procedures Linfox had in place in the Distribution Centre”.
Individual instances of failing to abide by the employer’s policies – such as notifying his managers when unable to attend work; keeping mobile phones off during working hours and safely unloading trailers – might not “in isolation have justified his dismissal”.
However, “in aggregate”, they provided sufficient grounds, he found.
There was also ample evidence, Commissioner Gregory said, that Linfox had provided the worker with sufficient information about its policies for their intent to have been “clear and understood”.
Malcolm Pearson v Linfox Australia Pty Ltd [2014] FWC 446 (17 January 2014)