What is the “greyer area” around an employee’s use of their own social media?

ELM: Whilst there are a number of resources available to employers on the topic around social media and the workplace, there is still often confusion around where the line is drawn between employees’ use of it. In your experience Stephen, is there a general rule employers can follow?

STEPHEN:  This falls into 2 areas.

With respect to use of the employer’s social media outlets, it probably goes without saying that negative comments about the employer or colleagues, or content which is inappropriate in a work context, will be grounds for disciplinary action, and possibly termination.  However, the greyer area is an employee’s use of their own social media in their own time.  In that context, posts which disparage the employer or other employees, or would be inappropriate in a work context, are arguably no business of the employer. 

It is therefore very important to have a social media policy in place, which makes it plain that out-of-work and out-of-hours conduct which is relevant to the workplace is not merely a private matter, but something about which the employer has legitimate concerns (reputation, workplace relations, harassment, bulling, discrimination for example) and which may well result in disciplinary action.

ELM: Were there any standout cases in 2016 where social media was featured as evidence; if so, what lessons were learnt from these?

STEPHEN:  One that struck me was an NSWIRC case, involving a dismissal for alleged theft of lost property by a railway worker: Marroun v State Transit Authority [2016]NSWIRComm 1003. The Commissioner found that the STA had not proved misconduct, so the original allegations did not justify termination.  However, Mr Marroun’s lack of frankness in the investigation destroyed the relationship of confidence between employer and employee, so termination was justified on that basis.  And even apart from that, Mr Marroun’s Facebook posts referring to the executives involved as “bastards” and “criminals with stars” would have made reinstatement impossible.  The Commissioner observed that while the employment relationship is robust and can withstand “some stresses and strains”, that went too far.  If the posts had been made on the spur of the moment and then taken down, perhaps the position would be different, but in fact they remained up for 2 months or more.  This illustrates the point that employees can display some degree of dissent or unhappiness, in a civil manner, consistent with free speech principles, and employers can be expected to tolerate that, but abusive or offensive posts will take them beyond the pale.

ELM: Specifically in relation to employees’ who take “sickies”, how can, if at all, social media be used to challenge an employee’s legitimacy of being sick?

STEPHEN:  Information which is publicly available can be used legitimately.  If the employer has to go through hoops to get the evidence, that may well raise questions of fairness and privacy.  But if the information is spread, say by Facebook, to other employees or customers who report it, then that is fair game: if it is out there in the public domain, the employee who put it there, or whom it concerns, can’t legitimately say that it is private.  You always have to remember that a photograph or some other social media activity may only show a snapshot in time, and not be a true reflection, so beware of jumping to conclusions.  As always, if evidence of this kind is relevant or leads to a particular conclusion, it should be disclosed to the employee, so they have a chance to respond to whatever you think it shows.

ELM: What challenges and trends do you expect to see in the year ahead that involve social media and technology in the workplace?

STEPHEN:  I think that the tension between employees saying what they feel, and what employers feel about what they say, will always be there.  It is by now well known that posts and tweets are not really private and can have consequences, so the days are gone when people can plead ignorance about that.  A new issue may be other forms of social media such as Snapchat, where the evidence of a message is transient, and therefore difficult for an employer to obtain.  But in a way, that takes us back to the old days when the pub chat was “off record” and not usually available as evidence of what the staff were thinking and doing!


About Stephen Booth:

Stephen has been in practice for over 30 years and leads Coleman Greig’s Employment Law Team. He has developed the firm’s practice in the area of employment law, advising and representing employer and employee clients in a wide range of areas including unfair dismissals, discrimination, legislative and award compliance, and workforce restructuring and redundancies. He has written employment law commentary for Smokeball electronic legal publishing.

Stephen is an entertaining presenter and regularly leads workshops, breakfast briefings and training sessions on employment law, competition and consumer law and legal issues concerning intellectual disability. He is part of the Sydney panel discussion at the upcoming HR Law Masterclass.