Can you terminate an employee for what they post on social media?

The recent events  with Australian Rugby player Israel Folau being sacked by Rugby Australia has raised the question, to what extent can an employer take disciplinary action over an employee’s social media posts?

In the case of Folau, he posted images and text to social media sites such as Instagram saying, amongst other things, that “hell awaits drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”. Rugby Australia has since terminated Mr Folau’s employment contract on the basis that he violated the player Code of Conduct. At the time of writing, Mr Folau has filed a claim of discrimination in the Fair Work Commission.

The legal background

It is common for businesses to include social media clauses in their employment contracts, or within a Code of Conduct. Many businesses also have social media policies in place. Although the content of specific comments and context matters, breaching such policies or codes of conduct may leave an employee liable for disciplinary action, including termination of employment.

There are now numerous cases that have considered social media posts that resulted in termination of employment. The leading case in identifying the principles relied upon for disciplinary action is Rose v Telstra Corporation Limited [1998] AIRC 1592. That case established that disciplinary action will be justified if the social media activity:

  1. Causes or is likely to cause damage to the employment relationship; or
  2. Is detrimental to the employer’s interests; or
  3. Is incompatible with the employee’s duties as an employee.

If the activity falls within one or all of the categories above, social media posts made outside working hours, from home, and intending to be private, may result in employee  disciplinary action. As the Fair Work Commission has previously noted, “it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences”.

As the lines between what is private and what is not become more and more blurred, and we rely on social media daily, it is crucial that employers take measures to protect their brand and interests, whilst capitalising on the opportunities social media affords.

How can your organisation do this?

Ensure you have a clear and effective social media policy,  one that clearly outlines the responsibilities and expectations of your employees. As is the case with all employment policies, simply having a policy in place is not enough. It is equally as important that employees are trained in the policy and properly understand it. Education is the key!

It is also important to remember that a social media policy must be reviewed and updated to stay current with advances in technology and social media use.

If you would like any assistance developing a social media policy or reviewing an existing policy, please contact a member of our employment law team who have the expertise to help.

This article was written by Senior Associate, Adam Crichton

Practice Area: Employment

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