Australia: Social media use outside of work: Facebook post a valid reason for employee dismissal

Last Updated: 25 June 2018
Article by Michael Selinger and Natasha Jones
Most Read Contributor in Australia, October 2018

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 [2018] 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.

Shift changes

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).

Safety concerns

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.


i B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Michael Selinger
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions