The purpose of this article is to consider the issue of employee use of social media and what rights an employer may have if they do not like what an employee posts on social media.
This issue seems to be regularly reported in the media; usually because of high profile cases such as the Israel Folau case.
However, putting aside high-profile cases, the frequency of the Courts being asked to deal with this issue has been increasing. There was a significant number of cases in 2019 in various jurisdictions which considered this issue. One case, that of a Federal Government employee (Comcare v. Banerji) went all the way to the High Court.
The case was interesting if for no other reason than the extent of the social media use by the employee.
The circumstances were:
- An anonymous employee, so not readily identifiable as an employee of the Department of Immigration;
- Posted 9,000 social media comments criticizing, among others, the department, government figures and opposition figures;
- The Employer had a social media policy prohibiting such conduct.
This case itself dealt with the more theoretical issue of the implied freedom of political expression. The High Court held that the employee’s employment was properly terminated.
But this case does raise the question, what can a private industry employer do when an employee runs riot on social media.
The case of Banerji should not be seen as permission for employers to sack employees who post material on social media that the employer disagrees with.
The test essentially is whether the activity of the employee might:
- Cause serious damage to the relationship of employee and employer;
- Damage the employer’s interests, for example, reflecting badly on the employer in the conduct of its business; or
- Indicate an unfitness for work.
It is about the impact on the employer’s business and relationship with the employee.
In the recent Federal Court case of Rumble v. HWL Ebsworth (September 2019), Rumble was dismissed from his position as a consultant to law firm HWL Ebsworth. The basis for his dismissal was that Rumble had criticized two clients of the firm, both government departments. This, the law firm said breached its policy not to criticize clients of the firm.
Rumble alleged that he was dismissed for expressing his political opinions.
The Court agreed with the firm and concluded that Rumble was dismissed because he repeatedly failed to follow reasonable directions to not criticize the firm’s clients in breach of the policy.
In contrast in the case of Murkitt v. Staysafe Security (August 2019) the Fair Work Commission held that the dismissal of an employee who made derogatory comments on Facebook about the directors of her employer (in breach of its social media policy) was not justified. The Commission took into account the employee’s otherwise unblemished record, her length of service (nearly 15 years) and fact that the employee was suffering from a psychological condition at the time. Although there was a valid reason for dismissal, such dismissal was in the circumstances harsh.
A couple of other examples from the cases include:
- An employee complaining about a warning and no Christmas bonus – no justification for dismissal;
- An employee making false allegations of sexual harassment – justification for dismissal.
Finally, there was a recent Federal Circuit Court decision in Ridd v. JCU (September 2019) where an academic was awarded over $1m because he was dismissed over criticism he published about other academics. This case concerned the interpretation of the applicable EBA. It therefore may not be of broader application, but again, it shows the potential for exposure for employers.
The take home messages for employers and employees alike are:
- Employees need to be careful what they post on social media;
- Social media postings may be conduct which an employer could rely upon to discipline an employee. That action may include dismissal in appropriate circumstances;
- Employers need to be careful to ensure that the employees conduct on social media justifies the disciplinary action taken.
- Employers need to have a social media policy, but it is not the case that any breach of such a policy will justify dismissal.
- As the Banerji case identifies, if an employee posts anonymously, the employee should assume that at some state they and therefore their employer will be identified.
While there are some common general principles in the cases above, each case will turn on its own facts.
Before an employer dismisses an employee because of social media use (misuse), it would be prudent to seek legal advice. Stokes Lawyers can assist by providing advice in relation to employment contracts, social media policies and termination rights.
If you have any questions about this or any other employment related issue contact our Director of Dispute Resolution, Scott Eustace, on 3439 8880.
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