Social Media: Private speech or a new way to be dismissed

By Elizabeth Olsson

The phenomenon of social media over the last 10 years has brought challenges to employers. Employees invariably forget that the platforms that they use are public forums. Even with privacy settings set on the highest level, any entry made or received is conveyed to that person’s “Friends” or “Followers” which usually number in the 100s and are then available for on-distribution. The potential for comment or information to spread quickly is enormous.

Employers are not prohibited from perusing a public internet site to monitor employee behaviour to determine if

  • Confidential information has inadvertently or deliberately been disclosed;
  • An employee has been deceitful when taking personal leave;
  • An employee has made derogatory comment regarding the employer, its employees or its clients;
  • An employee has used the social media platform to bully, harass or vilify another employee.
  • With regard to the first two examples, social media makes it easier for an employer to establish misconduct.

It is the last two categories that are the most troublesome. Many employees consider that they have the right to express personal opinions in their out of hours time and do not understand that in doing so, they are potentially exposing themselves to disciplinary action and the possibility of causing damage to an employer’s business.

It is a long established principle that out of hours conduct (on social media) or otherwise can be the subject of workplace discipline if that conduct could:

  • damage the relationship between employer and employee;
  • damage the employer’s interests; or
  • is incompatible with the employee’s duty to their employer. [1]

One of the first cases on the subject was that of Fitzgerald v Escape Hair Design[2] where an employee complained, without identifying her employer, about the size of her Christmas bonus and holiday pay. Although no misconduct was found the Commissioner stated that “it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.”

In O’Keefe v Williams Muir’s Pty Ltd t/a Troy Williams The Good Guys[3] the applicant had complained in a fit of anger and using strong language, about his commission being paid incorrectly, ending with words that could be viewed as a threat to the payroll officer. He did not identify his employer or the employee and he had high privacy settings. The Commission found the post to be misconduct because even though the words could not be seen by his employer or the person threatened, they could be seen by fellow employees who were Facebook friends.  In this case, it was stated that “the fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference.”[4]

Misconduct by activity on social media is not restricted to derogatory comments about the employer or workmates. There is no unfettered constitutional right to freedom of speech and political opinion in Australia. Employees can be constrained in their behaviour by the nature of their contract of employment and duty to their employer.[5]

In Little v Credit Corp Group Limited[6] the employee posted derogatory comments on  the Facebook page of an organisation with which the employer had dealings. Little claimed that he had commented through his private Facebook account that, he said, in no way linked him to his employer. He alleged that he was entitled to express his own personal opinions in his own time. Deputy President Sams gave this argument short shrift saying, “the applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability... the fact the applicant made both Facebook comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee.”[7]  On the facts of the case, Little’s actions had damaged the relationship between him and his employer and the employer’s interests and amounted to a repudiation of his employment contract.

However, it is all a question of degree. In Stutsel v Linfox Australia Pty Ltd, an employee was dismissed for having made or participated in offensive conversations about two of his managers.[8] The conversations were found not to be misconduct.  “The posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment. In each case, the enquiry will be as to the nature of the comments and statements made and the width of their publication. Comments made directly to managers and other employees and given wide circulation in the workplace will be treated more seriously than if such comments are shared privately by a few workmates in a social setting. In ordinary discourse there is much discussion about what happens in our work lives and the people involved. In this regard we are mindful of the need not to impose unrealistic standards of behaviour and discourse about such matters or to ignore the realities of workplaces.”[9]

Whilst both pages were public without privacy settings, in Stutsel the Commission placed significance of the fact that the worker was older and less computer savvy, using an account set up by his family which he thought was set to high privacy. He never intended his comments to be public.[10] In Little, it was found that it was implausible that the younger man, who was a regular Facebook user, did not understand how to use privacy settings or understand how Facebook worked and that he had intended the comments to be public.  Importantly, the employer in the Little case also had in place a social media policy about which Little had not only been trained but on which he had scored highly. In contrast, Linfox had no social policy in place and it had never been made clear to Stutsel that comment on social media could affect his employment.

There are limits though. In Wilkinson-Reed v Launtoy Pty Ltd[11] an employee relayed to her employer’s ex-wife that the employer had taken a dislike to another employee via a private Facebook message, only accessible from the wife’s Facebook account. This was found to be a breach of confidentiality, but not of the social media policy.  “While the Facebook conversation may have been conducted by means of social media it was in the manner of a private email. It is unlikely that a policy that was an attempt by an employer to control the contents of private emails between their employees third parties, written in their own time and using their own equipment would be found to have the requisite connection to the employment relationship such that an employee could be terminated for a breach.”[12]  Given the context of a private conversation never intended for the public domain, it was insufficient to warrant more than a formal warning. However, it is clear from the case that had the comments been made to a person such that it did affect that person’s opinion of the employer there might have been a different result.

These cases show the need for employers to ensure that a social media policy is in place and that their employees understand the consequences of a breach. However, it is clear that care must always be taken to consider the specific facts of the case and to ensure that proper procedure is followed in considering dismissal.

Published 12th May, 2014 Law Society of South Australia Bulletin

Elizabeth Olsson, Senior Solicitor, Mellor Olsson Lawyers

Phone: 8414 3421 email: eolsson@mellorolsson.com.au

Endnotes

1] Rose v Telstra, AIRC Print Q9292

[2] [2010] FWA 7358. It is important to note that this was not the only reason given for termination. The employee was ultimately successful in her claim.

[3] [2011] FWA 5311

[4] At [43]

[5] Banerji v Bowles [2013] FCCA 1052. A public servant employed by the Department of Immigration posted tweets under a pseudonym critical of the then government and opposition about its immigration policies.

[6] [2013] FWC 9642

[7] At [73] and [74]. The employee had also posted a very poor and sexually offensive joke on his own page purporting to welcome a new employee on behalf of the employer.

[8] [2011] FWA 8444

[9] Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097

[10] An appeal by the employer to the Full Federal Court was dismissed. See Linfox Australia Pty Ltd v Stutsel [2013] FCAFC 157

[11] [2014] FWC 644

[12] At [66]

Practice Area: Employment

Head Office

5th Floor, 80 King William Street Adelaide, South Australia 5000
t: Australia (08) 8414 3400  International +61 8 8414 3400
t: Australia (08) 8414 3400
t: International +61 8 8414 3400
f: Australia (08) 8414 3444  International +61 8 8414 3444
f: Australia (08) 8414 3444
f: International +61 8 8414 3444

Connect With Us

ShareThis