Employee social media use is a persistent challenge for employers. When, and on what basis, can an employer intervene in an employee's outside work social media use?
A recent decision of the Fair Work Commission (FWC) has examined an employer's right to manage employees' social media use outside of work hours. In Waters v Mt Arthur Coal Pty Limited  FWC 3285, the FWC found that an employer fairly dismissed an employee for a Facebook post made outside of work hours on a personal account, and not with an employer device. A key factor was that the Facebook post related directly to work matters in breach of an existing workplace policy prohibiting that conduct.
The decision highlights the need for employers to have in place workplace policies which address the social media risks relevant to their business, and which also apply to social media use outside of work hours, including where the employee is not using the employer's IT resources and the activity is on a personal account.
Employers also need to ensure that there is a relevant connection between an employee's social media use and the employment before intervening in an employee's outside of work social media use.
Waters v Mt Arthur Coal Pty Limited
The employee, Mr Waters, was employed by Mt Arthur Coal Pty Limited (Mt Arthur) at its open cut coal mine in the Hunter Valley, NSW (Mine). Mr Waters was also a Health and Safety Representative (HSR) at the Mine.
Mt Arthur, in the lead up to Christmas 2017, made a number of decisions regarding whether it would conduct its operations at the Mine on Christmas Day and Boxing Day. The uncertainty surrounding the Mine's operations on these days related to safety. Mt Arthur announced two days before Christmas that the operations would continue at the Mine on Christmas and Boxing Day (Final Decision).
Following the Final Decision, an employee of the CFMMEU and an Industrial Safety and Health Representative appointed under section 28 of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 issued a direction to suspend mining operations (Direction) for safety reasons on Christmas Eve, following the Final Decision. The safety reason related to a reduced emergency evacuation capacity over that period. Mt Arthur received the Direction but made the decision not to comply as it did not see the safety risk to be a real concern. The Direction was not issued by the Applicant.
Mr Waters' Facebook posts
On Christmas Eve, after Mt Arthur received the Direction, Mr Waters made a Facebook post relating to shifts on Christmas Day and Boxing Day. The post said:
"Xmas & Boxing days [sic] shifts are off for good" (Facebook Post).
The Facebook Post was incorrect because Mt Arthur had made the decision not to comply with the Direction.
At the time Mr Waters made the Facebook Post, he was unaware that the Facebook Post was incorrect as he assumed Mt Arthur would comply with the Direction. When Mr Waters became aware that his post may have been incorrect later that evening, he made attempts to contact workers and representatives of Mt Arthur to confirm its decision to continue operations. Mr Waters then deleted the Facebook Post when he had confirmed that it was inaccurate.
Termination of Mr Waters' employment
Mt Arthur had workplace policies which set out, among other things, the workplace values of 'integrity', 'respect' and 'accountability' and which also prohibited:
- "distribut[ing] material that is likely to cause annoyance, inconvenience or needless anxiety to your colleagues'
- "disclos[ing] information to the public, including the media and members of the investment community, unless you are specifically authorised."
Mt Arthur terminated Mr Waters' employment for breaches of its workplace policies (as set out above).
Mr Waters' submission to the Fair Work Commission
Mr Waters argued that his dismissal was unfair because:
- the reason for his dismissal related to conduct outside of work
- he was protected from dismissal because he was dismissed for exercising the functions of his role as a health and safety representative pursuant to the Work Health and Safety Act 2011 (NSW) (WHS Act).
The FWC rejected Mr Waters' submissions.
The FWC found that the purpose of the Facebook Post had a relevant connection to the employment and therefore constituted a valid reason for dismissal because:
- the purpose of the Post was to communicate with his work group
- the reference to shifts was a plain reference to work shifts at the Mine
- the post related to operational matters
- the post was likely to cause serious damage to the relationship between Mr Waters and Mt Arthur because the content of the post was incorrect and required Mt Arthur to take steps to attempt to prevent or minimise the confusion which would likely be caused by the post
- the post would have been likely to, if not addressed in a timely manner, damage Mt Arthur's interests in operating the Mine
- the post was incompatible with Mr Waters' duty as an employee, particularly his obligation to comply with his relevant obligations under the workplace policies.
The FWC also rejected that the Facebook Post could be described as a function of Mr Waters' HSR duties to represent employees, inquire into anything that appears to be a risk to health and safety or receive information concerning work health and safety matters. In particular, the Commission found that the Facebook Post was not an exercise of Mr Waters' HSR functions in circumstances where the WHS Act did not expressly confer a power or function to communicate regarding health and safety matters to a work group on social media.
The FWC found that any purported failure by Mt Arthur to comply with the Direction did not give rise to any right for Mr Waters to make the Facebook Post or any reason that Mr Waters should be excused for his breach of the workplace policies.
The FWC found that Mt Arthur had a valid reason to dismiss Mr Waters for breaching its workplace policies, notwithstanding that Mr Waters:
- deleted the Facebook Post as soon as he became aware that it was incorrect
- that the Mine's operations were not in fact disrupted by the Facebook Post.
The FWC referred to a previous decision on the significance of breaches of employer policies in the context of assessing whether there is a valid reason for dismissal:
"A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal".i
The FWC also found that the dismissal was not otherwise procedurally unfair in circumstances where "Mr Waters knew, or ought to have known that his posts could, or was intended to, disrupt operations at the Mine on Christmas Day and Boxing Day".
Lessons for employers managing social media use
The FWC confirmed the circumstances when out of hours conduct may constitute a valid reason for dismissal, being when the conduct has a relevant connection to the employment relationship. The Commissioner set out the following matters to be considered when determining whether a relevant connection exists:
- whether the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employee and employer
- whether the conduct damages the employer's interests; or
- whether the conduct is incompatible with the employee's duty as an employee.
The decision also highlights the need for employers to have in place a workplace policy which, at a minimum:
- addresses the social media risks relevant to their business
- applies to social media activities which may occur outside of work and not using an employer's IT resources, but which have a connection to the employment
- has been communicated to the employees.
Employers should also ensure that there is a relevant connection between an employee's social media use and the employment relationship before intervening in an employee's social media use outside of work hours.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.