Published 11 November 2022
An employee’s use of their private social media accounts has the capacity to affect an employer’s legitimate business interests in a number of different ways, including:
- If an employee in their own time, posts disparaging remarks relating to the business or its clients, which causes damage to the business’ reputation.
- If an employee uses social media (whether inside or outside of work) to harass, bully, or discriminate against their colleagues, for which the employer may be held vicariously liable.
- If an employee engages in excessive social media usage during working hours (which is unrelated to work) but has the capacity to affect their efficiency and productivity.
To establish whether misconduct on social media can provide a valid reason for disciplinary action, the key thing to consider is ‘what is the legitimate connection of the conduct to the workplace?’ This may be that the employee’s conduct has damaged the reputation or security of the business, impacted upon its relationship with its clients or other stakeholders, caused harm to other employees, or has affected the employee’s ability to perform their duties.
Case law indicates that employers with comprehensive social media policies that employees are well aware of are better placed to hold their employees accountable for social media misuse and to defend against any unfair dismissal claims.
Reputational damage
An employee who posts on their own private social media account, and outside of working hours, may be dismissed if their post damages their employer’s reputation. Such social media usage generally needs to cause serious damage to the relationship between the employer and employee, damage the employer’s interests, such as disclosing confidential information or damaging client relationships, or be incompatible with the employee’s duty as an employee. When assessing the appropriateness of the disciplinary response, important considerations are also the nature of the employee’s role and seniority, the nature of the organisation, the contents of any social media policy and training, whether confidential information was disclosed and any mitigating factors such as the employee’s service record.
A number of decisions in recent years have upheld an employer’s right to dismiss an employee for offensive, derogatory or inappropriate comments on social media. Typically, such posts include highly offensive language, are critical of the employer, or otherwise cause serious harm to the employer’s business or reputation. Even if an employee believes their social media usage is not a matter for their employer’s concern, quite often their social media posts can be read by other employees, customers or clients of the employer. Furthermore, where an employee has a public profile by virtue of their position particular care should be taken by the employee not to post comments at odds with their employer’s interests, even in a private setting.
In Corry v Australian Council of Trade Unions [2022] FWC 288, an employee had posted highly offensive material on his Facebook account out of hours. The employer considered the posts to be in gross breach of its social media policy and summarily dismissed him. The employee brought an unfair dismissal claim before the Fair Work Commission, denying that the posts were offensive, homophobic, or antisemitic. Significantly, none of the posts were made during work hours, and while the Facebook profile was public, the employee was not identified on the profile as an employee of ACTU. Nevertheless, Deputy President Masson found that the employee had behaved in breach of the social media policy and noted that the key consideration was whether the employee’s out of hours social media conduct was a matter that ‘bore upon his employment relationship’.
In assessing the fairness or otherwise of the disciplinary action taken, the Commission will consider such matters as the employee’s service, their performance to date and any personal or mitigating circumstances. For example, in Daniel Starr v Department of Human Services [2016] FWC 1460, an employee was dismissed for making derogatory comments about his employer and the customers of his employer, including referring to customers as “spastics and junkies”, and disclosing information not publicly available. However, the dismissal was held to be unfair, and the Fair Work Commission ordered the employee be reinstated because there were strong indications the conduct would not be repeated. Further, the employee had a long and positive employment with the employer, and there was a lack of evidence that the employer suffered reputational damage.
Bullying or harassment
Social media connected to the workplace, whether in the workplace or in communication with co-workers outside of working hours, can be a platform for unlawful behaviour. Bullying, vilification, discrimination and harassment are all behaviours that consistently crop up on social media. For example, in one case, the Commission upheld the dismissal of a worker who sent a pornographic video to 19 co-workers outside of work hours despite no formal complaint being lodged by the employees to whom the video was sent.
The use of social media as a platform for bullying or harassment can result in employers being held vicariously liable for conduct of its employees, even where the offending conduct was outside of the office and office hours. Additionally, bullying, vilification, discrimination and harassment that occurs between employees can reduce productivity, increase absenteeism and negatively impact on the mental health of the employee receiving the abuse, as well as any observing employees.
To protect against vicarious liability and promote a healthy workplace culture, employers should have clear social media policies, which define and list unacceptable behaviour. Special note should be made that behaviour on social media occurring outside the workplace, outside working hours, or on a private account, may have a sufficient connection to the workplace if the correspondence involves co-workers or clients. As a result, the employee may face disciplinary action.
Productivity
Many employees spend time using social media for personal purposes when at work, on their personal devices, or on their work computer. Employers have a legitimate interest in maintaining staff efficiency and productivity, and some businesses may decide to restrict employee access to certain internet sites, such as Facebook, Instagram and Twitter. Or a policy which advises staff that social media use is permissible during break times only, to minimise the risk of it becoming a distraction and impairing upon their work performance.
In Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373, an employee’s termination was held not to be an unfair dismissal, after it was discovered that she had used her phone excessively during her work hours in order to run her own farm stay business. Significantly, the employee had been directed to turn off her phone while at work, but two days later sent 73 text messages within a period of four and a half hours. Even with clear policies relating to social media use, it is always best practice to also provide clear directions or provide written warnings of breach, prior to proceeding to dismissal.
Social media policies
The discipline or dismissal of an employee for inappropriate social media use will be considered in light of any social media policies which exist in the business. As such, it is imperative that all organisations have a social media policy which clearly:
- Defines who is covered by the policy.
- Defines what conduct is covered by policy, for example, usage in both working and non-working hours, and on company and private accounts.
- Defines what social media behaviour is acceptable and unacceptable.
- Defines whether staff can use work devices to post on social media.
- Prohibits any comments that criticise the employer or would be likely to damage its reputation.
- Prohibits employee’s from referring to the employer in any social media forum except as expressly agreed by the employer.
- Prohibits the publication or commentary of confidential information, which should not be disclosed to third parties online, unless required to do so by the employer.
- Defines how and where company brands and slogans may be used online, and by who.
- Educates employees that some social media use may be a valid reason for dismissal or other disciplinary action, and that employers may be vicariously liable for their employees’ use on social media.
- Encourages employees to apply privacy settings on their accounts, so that their comments and profiles are not visible to the world at large.
Summary
Often, a social media policy will not be enough, and all employees should be made aware of the policy upon induction and at regular intervals and receive training to best protect the employer’s interests.
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This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.
Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.
