The use of social media as a necessary means of communication in business has been so widely recognised that many employers now have social media policies in place to ensure that employees are aware of what is appropriate use of social media, and what is not – and an employer who doesn’t, should!
Social media unavoidably blurs the boundaries between public and private and the blurred line has led to employers scratching their heads over situations where an employee has posted something in their “private” capacity on social media, which is likely to have a negative impact, and which could be connected to the employer.
It is therefore no surprise that the Fair Work Commission has had to rule, on several occasions, on the lawfulness of an employer terminating an employee’s employment over a “private” post on social media.
For example, last year SBS and former sports reporter Scott McIntyre was dismissed from the SBS for his controversial tweets on Anzac day where he referred to the commemorative day as “Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs” and questioned whether “poorly-read, largely white, nationalist drinkers and gamblers had paused to consider the horror that all mankind suffered.”
The public outrage that followed Mr McIntyre’s tweets resulted in his dismissal from SBS, and an ensuing adverse action claim filed by Mr McIntyre, on the basis that he was discriminated against for exercising a political opinion. SBS argued that he was not dismissed for expressing his political opinions, but because he failed to comply with their social media policy. The matter settled privately, and Mr McIntyre confirmed that his tweets were his views, and not SBS’s.
In another “attribution to employer” case, a Meriton employee was dismissed for a misogynistic Facebook comment where his employment by Meriton was apparent to readers.
The first social media lesson
When expressing personal opinions, employees should take care to ensure that they disclaim that the opinions are their own, and not those of their employer. In a similar vein, employers should take care to ensure that their social media policy stipulates that employees must make such a disclaimer when expressing their own opinions, or take steps to ensure that there is no link to their employer at all, when posting or tweeting.
Another instance of social or political commentary causing problems occurred when an airline employee who allegedly made comments under a pseudonym in support of IS, was sacked. The employee has alleged unfair dismissal, on the basis that his comments were sarcastic and political in nature.
And in yet another case involving political opinions in March this year, the Fair Work Commission held that offensively worded posts were political speech and were not a valid reason for dismissal. Mr Starr had been employed as a Centrelink Officer by the Department of Human Services for 21 years. During his employment but outside of business hours, he had frequently posted in online community forums under the screen name mmmdl. He identified himself in some of his comments as a public servant who dealt with Centrelink recipients regularly, although he never disclosed his full identity.
Among his online posts were comments including: “Try dealing with whinging junkies hour after hour,” and “I honestly have zero idea what all our managers do,” and “if you can’t afford to have a child without receiving a Welfare payment … then don’t have a kid.” He also referred to welfare recipients as spastics. Other comments involved criticisms of the budget and other aspects of federal government policy. These comments were interposed between others made by Mr Starr which offered helpful tips and advice to individuals enquiring about the processes of Centrelink.
In terminating Mr Starr’s employment, the Department referred to their Code of Conduct and said that Mr Starr had an obligation not to make comments that were “obscene, defamatory, threatening, harassing, discriminatory or hateful to or about your work, or harsh or extreme in your criticism of the government, or strong in your criticism of the department’s administration.” The Department also referred to their social media policy which stated that, among other things, employees were not to make derogatory comments about managers or customers, or to disclose internal information on their social media accounts.
In determining whether an employer could regulate or take disciplinary action in relation to out of hours conduct, VP Hatcher applied a previous decision which held that the an employee’s employment could only be validly terminated because of out of hours conduct where the conduct is “of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”
VP Hatcher identified a difference between Mr Starr’s social media posts which were political in nature, and those that were critical of his place of employment. Those posts which criticised the budget and federal government policy were political comments which could not be regulated by the employer, because of the implied constitutional right to freedom of political communication – an employer’s social media policy or Code of Conduct cannot curtail this freedom.
However, the posts that criticised Centrelink management and clients could be subject to disciplinary action. VP Hatcher found that there was a justifiable reason for the termination, but that it was nonetheless harsh given Mr Starr’s comparatively unblemished employment record, his length of service, the fact that comments were in reaction to other posts and general in content (eg no particular person could be identified as the subject of his criticism), and not done to intentionally harm the Department, in addition to the remorse shown by Mr Starr. He was reinstated, but not awarded compensation for the length of time he was unemployed, because his own misconduct had brought about the termination.
The second social media lesson
Ensure that the conduct complained of is conduct that an employer is entitled to regulate, before deciding on disciplinary action.
The third social media lesson
If you are entitled to regulate the conduct, ensure that the social media post is of such gravity as to justify disciplinary action, especially termination.
The fourth social media lesson
If termination of employment is justified, make sure that you have taken all relevant facts and angles into account, before terminating the employment, to ensure that the termination is not harsh, unjust or unreasonable in the circumstances.
So, employees and employers need to be mindful of where to draw the line between private and public, and of the legal minefields that they can create where the line is blurred.
About Lisa Qiu:
Lisa joined Coleman Greig Lawyers in 2015 as a member of the employment law team. She has experience in the jurisdictions of the Fair Work Commission and the Fair Work Ombudsman, and acts for clients in a range of employment matters including:
- Unfair dismissal
- Adverse action
Having an in-depth understanding of the legislation involved, Lisa is able to assist employers understand their legal obligations towards their employees, and to ensure those obligations are met. She can also help individual employees to understand their legal rights and offer guidance to those who may be facing issues with their employment.