The public attention around Antoinette Lattouf's dispute with the ABC has brought into sharp focus the right of an employer to take action if an employee posts social media comments contrary to the policies, directions or interest of the employer. But what are the rules? When will there be valid grounds for an employer to dismiss an employee for such conduct, including other behaviours that take place outside of the usual work hours?
Out of hours conduct and the sufficient connection to work
The courts and tribunals have made it plain that the critical issue to determine whether an employer can discipline an employee for conduct outside of work is whether the conduct has a sufficient connection to the workplace.
When deciding if the conduct has a sufficient connection, the employer must be satisfied that the duties and responsibilities of the employee or some other aspect of the employment are affected. Relevant factors include:
- nature of the employer's business and what work the employee does
- nature and timing of the conduct
- effect and severity of the conduct
This approach, capturing a broad view of out of hours conduct, has led to cases of dismissals where employees have been involved in misconduct outside of the office. For example, the Fair Work Commission upheld the dismissal of a long-serving employee who had indecently assaulted a colleague at a work function. The Commission found the conduct "occurred on the border between a work-related event and private activities" and was sufficiently connected to the employment and warranted dismissal.
Importantly, before any disciplinary action is taken, it must also be evident that the conduct:
- was likely to cause serious damage to the relationship between the employer and the employee; or
- damaged the employer's interests; or
- was incompatible with the employee's duty as a loyal employee.
Social media conduct
Social media conduct outside of business hours is another form of out of hours conduct.
Although there is no limit on the circumstances in which social media conduct may be connected to work, some clearer examples include:
- posting negative comments about the employer and/or clients and customers of the employer
- social media activity which supports a finding of misconduct e.g. posts which may evidence false medical certificates
- breaches of the employer's confidential information
- inappropriate conduct, harassment or bullying of employees or persons connected with the employer
In a 2018 case, the Fair Work Commission found that an employer had fairly dismissed an employee for a Facebook post made outside of work hours on a personal account, and not using an employer-owned device. The key factor was that the post related directly to matters about work shifts and closures, breaching an existing workplace policy prohibiting such conduct.
In some cases the connection to work may be less clear.
In Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288 the Fair Work Commission (FWC) upheld the decision of the Australian Council of Trade Unions (ACTU) to dismiss Mr Corry for social media posts on the work Slack platform and his personal Facebook account. The posts supported anti-vaccine mandate campaigns, applauded aggression against police, disparaged people of different races and vilified transgender people. There was no evidence that the employee had shared the posts or similar views in his capacity as a call centre worker. Rather, the ACTU successfully argued that the posts were considered "completely inconsistent" with its progressive values and workplace code of conduct and harassment policies.
By contrast, in Ventia Australia Pty Ltd v Pelly [2023] FWCFB 201 the Full Bench upheld an order to reinstate Mr Pelly following offensive and sexually explicit posts in a private Facebook group named "Sickos Video Sharing Group".
While the FWC supported Ventia's decision to dismiss another employee whose posts in the group were made during work hours, most of Mr Pelly's offensive posts were made outside of work hours and Ventia failed to establish a sufficient connection between the posts and the employment. Although the Facebook group comprised a large percentage of Ventia employees and the materials were explicit, there was no evidence that the posts impacted on the ability for Mr Pelly to perform the inherent requirements of his role and there was no evidence that Mr Pelly caused damage to the employer's interests. Relying on out of hours conduct as evidence of a lack of confidence in the employee or uneasiness surrounding future conduct within the employment is not enough. The FWC considered that an 'actual repugnance' between the out of hours acts and the employment must be found.
How can an employer address out of hours social media conduct?
Employers should establish a broad ranging social media policy that clearly outlines the expectations, rights and obligations for social media use and its impact on the company.
A social media policy operates as a series of lawful and reasonable directions to employees in respect of their social media activity, both in the workplace and out of hours. On this basis, a social media policy must be underpinned by a reasonable connection to work. A wilful breach of a lawful and reasonable social media policy amounts to the breach of a fundamental term in the employment contract and allows an employer to take disciplinary action.
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.
