Social media use is under the spotlight. With the Israel Folau case and a recent High Court decision on the sacking of a public service employee responsible for an anonymous Twitter account very critical of the government highlighting the conflict between private use of social media and employers’ expectations of their employees’ use of social media.
Social media is an inevitable part of life and work and is often used as a tool to communicate within and outside the workplace. This article considers the lines between an employee’s personal use of social media and their obligations as an employee.
The parameters of what is acceptable use of social media by an employee are constantly changing as the number and type of platforms and prevalence of their use changes. As demonstrated in the following decisions, the distinction between an employee’s right to post as a private citizen and their role as an employee can be unclear.
In Murkitt v Staysafe Security  FWC 5622, the Commission was required to consider whether an employee’s Facebook post could be the subject of disciplinary action which led to her dismissal.
Murkitt was a long term employee who suffered a psychological injury after a work colleague was killed on his way home from work. She was off work for some months for a psychological injury covered by workers compensation. In February 2019 Murkitt was advised by her medical professionals that she would not be able to return to the workplace. She was angry about this and posted comments on Facebook critical of her employer.
Murkitt’s contract of employment contained a provision that she would not do anything intentional that was, or may be, harmful to her employer. She was the subject of disciplinary action as a result of her post and was ultimately dismissed and brought an unfair dismissal claim.
Whilst the Commission found that her Facebook post constituted a valid reason for her dismissal on the basis it breached her contract of employment and the employer’s social media policy, it found that Murkitt was unfairly dismissed as her dismissal was harsh under the circumstances and disproportionate to her conduct. Of relevance was her 14 years of service, previously unblemished record and her medical condition which contributed to her decision to post the comments.
In Singh v Flight Support Pty Ltd  FWC 6186 a casual baggage handler was dismissed following public posts on Facebook outside of work hours that appeared to express radicalised views such as “We all support ISIS” when posting an article posted by an Australian Islamic Group.
The employer had a social media policy in place and Singh was authorised to work in restricted security sensitive areas of Perth airport in his employment.
Prior to terminating his employment Singh was called to a meeting to discuss his Facebook posts. Singh said the posts were sarcastic, he was opposed to ISIS and apologised that his posts had been misinterpreted. His employer adjourned the meeting for some 10 minutes to consider his response before returning and terminating his employment on the basis of his Facebook posts.
Singh brought an unfair dismissal claim against his employer. The Commission found that Singh’s posts were a breach of its social media policy, he had been very stupid and if he had confirmed he was a supporter of ISIS it would have found the Facebook post was a valid reason for dismissal. However, in circumstances where Singh said he did not support ISIS, that his posts were sarcastic, he apologised for the misinterpretation and the employer only took 10 minutes to consider his response, the Commission found there was not a valid reason for his termination.
The Commission placed particular emphasis on the employer’s failure to properly consider and investigate Singh’s response when they met with him to discuss his Facebook posts. However, it is worth noting that Singh’s compensation award was reduced by 40% because of his breach of the employer’s social media policy.
In Renton v Bendigo Health Care Group  FWC 9089 whilst the Commission made adverse findings against Renton it found that his dismissal for social media posts of a sexual nature tagged to some coworkers and leaving blobs of sorbelene on their desks, was disproportionate to his conduct and harsh in all of the circumstances. He was a long term employee with a prior unblemished record and the employer appeared to have met with him having pre-determined its decision.
An employee must be given procedural fairness before a decision is made. This involves properly investigating the social media post/s, putting the post/s to the employee and giving them a chance to respond, considering the response and making a decision after consideration of all of the information and circumstances on the balance of probabilities.
The line between the right of an employee to express their personal views and an employer’s right to restrict the social media communications of employees is the subject of much debate across Australia. Many employees have an online presence as part of their employment but will also maintain separate personal email accounts. This means a comprehensive social media policy is vital.
A good social media policy should give employees a clear understanding of their employer’s expectations when posting online. Confidential and commercial information should clearly be off limits and not matters that are the subject of social media posts. Photos taken at the workplace or at work related events should also be off limits, or at least subject to vetting. You don’t want confidential work information inadvertently revealed in a photo or those embarrassing dance moves of the CEO at the Christmas party splattered across social media.
Personal posts are more difficult to clearly regulate. Generally, an employee has the right to post personal views on social media. However, where these posts concern the workplace or could adversely impact the employer it becomes less clear. Social media channels that are open to the public are particularly open to scrutiny from an employment context.
Depending on the nature of the employer’s business and the subject employee’s role, all employees may be considered ambassadors of the employer’s brand and reputation.
The policy should define what constitutes social media and keep it broad to capture all possible tools. It is helpful to give employees clear examples of what is, and what isn’t, acceptable.
If the post reflects a personal view but could bring the employer into disrepute by association it is not acceptable. Obviously posts that breach confidentiality or express negative views of the employer or individual employees are a no no.
Make it clear when it is appropriate for employees to use social media during work time – if at all – so that employees clearly understand the amount of usage that is acceptable.
It is helpful to warn employees of the pitfalls of social media by giving some examples where employees have come unstuck. In an age where detailing every aspect of your life on social media is not uncommon these lines can be blurred.
The policy should clearly identify the consequences of breaching the policy and the range of penalties/outcomes that might occur.
In considering whether an employee’s dismissal is harsh unjust and unreasonable, the courts will consider whether:
- the employer had a social media policy and what the policy required;
- the alleged conduct occurred;
- there was a sufficient connection to the workplace;
- the employee was given a chance to respond before a decision was made to terminate; and
- the punishment was proportionate to the crime.
Get advice before making a decision to discipline an employee for their use of social media. Every case will turn on its particular facts and the courts’ views on the do’s and don’ts is ever-changing.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.