Australia: Expressing an opinion on social media: free speech or employment peril?

Being alive in the age of social media is an exciting time. We have the ability to connect with others in a way like never before. We can engage in discussions on matters of national and social discourse at the touch of a button.

There is a lot to discuss as citizens. There are many of us discussing the importance of equal rights and respect for women. There is a positive push for laws dealing with domestic violence. So, how do you respond if your supervisor calls a feminist newspaper columnist a "slut" on Facebook?

We are promoting workplaces of diversity and inclusion. Some employers, like the Defence Force, are endeavouring to achieve real cultural change. As a nation, we are debating marriage equality. So how do you respond when a defence force reservist says "I wouldn't let a gay person teach my children and I am not afraid to say it"?

In politics, we are seeing a movement towards protectionism, such as in Brexit and Trump's election. Can employees express the view that "its jobs for Australians" and "non-Australians" should not be given jobs or working visas?

With matters of public discourse, views differ. So, what is an employer's right to regulate social comment by employees? Employers generally do not want to trawl through or 'police' social media use by employees; there are much more important aspects of business to focus on. However, sometimes the comments made can have an impact on the business, workplace and employees.

As the below cases demonstrate, the unlimited access social media provides to our personal lives and views can be problematic, for both employers and employees.

An ISIS "supporter" is handling your luggage

A baggage handler working at an airport wrote on his Facebook page: "We all support ISIS". Would you feel safe flying on an aircraft when your baggage handler wrote this on his Facebook page? Probably not, and you would expect the employer to have dismissed him.

These were the real life facts in Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186. Mr Singh's dismissal was unfair despite his "incredibly stupid" comment. Mr Singh was not actually an ISIS supporter, Commissioner Hunt found.

The Commissioner agreed with Aerocare that Mr Singh breached its social media policy and failed to meet the standard required of employees in a high security-risk environment. You would think this would constitute a valid reason for dismissal, right? Wrong.

While the Commissioner recognised that Mr Singh had breached Aerocare's social media policy as the post "may have had the result of causing harm to Aerocare" and could significantly damage its reputation, these matters alone did not create a valid reason for dismissal.

The Facebook post was written outside of work on his own device. Mr Singh was not a supporter of ISIS. If it was found that Mr Singh was an extremist, the Commissioner said the dismissal would have been valid.

Ultimately, Commissioner Hunt said:

A more thorough investigation, including obtaining a written account from Mr Singh would have satisfied Aerocare that Mr Singh did not support ISIS. A reasonable conclusion would then be that the ISIS post was an incredibly stupid post to have been made.
My finding, however, should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing...

It is difficult to reconcile the above reasoning.

The context of the employee's employment is significant. The post was incompatible with an inherent requirement of the employment of baggage handlers, namely that the employer and public can have the utmost confidence in them with security. The post, whether true or not, is incompatible with that trust and confidence. It created an appreciable uneasiness.

Tagging colleagues and blobs of sorbolene cream

Mr Renton posted a sexually graphic video to Facebook in which he 'tagged' two work colleagues with the statement "Frank ... getting slammed by Jo ... at work yesterday". At the same time, Mr Renton left blobs of white sorbolene cream on Frank's desk at work.

Frank and Jo were not impressed. Neither was Mr Renton's employer and Mr Renton was dismissed. Mr Renton's dismissal was ultimately found to be harsh due to the post being a once-off blemish in a long career: Renton v Bendigo Health Care Group [2016] FWC 9089. As there was a valid reason for dismissal, Mr Renton was however not reinstated.

Mr Renton said he wasn't thinking when he made the post. It was only posted for a laugh. Jo thought the post only justified a warning. Frank had also 'tagged' Mr Renton in the past with 'blokey, crass and immature' posts and Frank was not dismissed. These matters were not exculpatory.

"Mr Renton, by his actions, exposed [Frank and Jo] to humiliation and potential ridicule at work. The professionalism and appropriate standards of conduct of their co-workers must be relied on to ensure this does not occur. His actions were crass, careless and showed an absence of judgment", Commissioner Bissett said. There was a valid reason for Mr Renton's dismissal.

Conclusion

The Renton decision demonstrates that private comments and views on social media can have an impact at work. As Commissioner Bissett said, consequences for employees and others are "far reaching" and "cannot be ignored".

Posting personal views can create conflict and incompatibility with employment. It can impact workplace harmony and cohesion or detract from an employer's corporate social responsibility initiatives and reputation. That is why a building company dismissed the supervisor for a derogatory comment about the columnist when it was a public supporter of equality for women.

Unfortunately, employees have shown a lack of maturity and insight with the impact and reach of their personal views on social media. Some personal views, or how they are expressed, may place their employment at peril.

Employers however can be more proactive in the area of social media. Education and training on the reach of social media, and how personal views could impact on work and work relationships needs to be taught.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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