With the increasing popularity of social media in the past decade, employers across Australia have implemented a range of measures to ensure that they are protected from the harm that social media can invite. Employers are increasingly incorporating social media restrictions into employment contracts along with comprehensive social media policies that extend to conduct outside the workplace.
Social media, whether used within the workplace or for communication with colleagues outside of working hours, can serve as a platform for problematic behaviour. Instances of bullying, vilification, discrimination, and harassment frequently manifest on social media platforms. Employees should be aware that their rights and responsibilities with respect to social media use may extend beyond the workplace.
In an earlier blog, "Social media and work – employees be warned", we explored a case involving an Instagram post by a Hobart Hurricanes cricket player, which landed her in hot water. In this blog, we look at two more cases from 2018 and 2022 which saw both employees terminated due to inappropriate social media use outside of the workplace.
The illusion of privacy
Employees should bear in mind that their 'private' social media activity is not always private.
Even if a social media post, comment or tweet is private or only shared amongst close friends and family, that post can be screenshotted, shared or reposted to a limitless audience. An initial audience of a couple of friends can quickly become an audience of thousands, with devastating effects.
There are countless examples where employees have shared personal messages between colleagues that have made their way back to an employer.
In the case of Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174, a stevedore was dismissed due to his transmission of a sexually explicit video through Facebook Messenger to a private group that included male and female colleagues, despite no formal complaint to the employer.
Mr Colwell disputed his employer's decision in the Fair Work Commission ("FWC"), arguing that:
- any conflicts or issues arising from social media interactions amongst friends should be resolved among themselves, without the interference of an employer; and
- the conduct lacked a significant connection to his employment since it:
- occurred outside of work hours;
- did not involve any workplace-related resources; and
- involved only the applicant and other employees who had volunteered to connect via Facebook.
The employer, which had implemented measures to encourage greater female participation in the stevedoring industry, including introducing policies to prevent all forms of workplace harassment, contended that the conduct constituted a violation of its policies.
The FWC determined that there existed a necessary connection between the employee's behaviour and his employment, thereby justifying the dismissal. The FWC found that Mr Colwell had formed Facebook connections with his colleagues primarily due to their work relationship and concluded that the content shared privately among them was a breach of the employer's policies of expected conduct.
Ensure you know and understand your employer's social media policy
Workplace policies can vary significantly between employers, and it is important that employees thoroughly review and comprehend all policies within their workplace, including those concerning the use of social media.
Often, workplace policies concerning the use of social media will expressly include social media activities outside of the workplace and include the use of social media platforms when communicating between colleagues beyond ordinary working hours.
In Corry v Australian Council of Trade Unions [2022] FWC 288, an employee found himself in a contentious situation after sharing provocative and discriminatory content on his personal Facebook account in support of anti-coronavirus protests. His employer, deeming these posts a serious violation of their social media policy, summarily dismissed the worker, terminating his employment immediately.
Crucially, it is important to note that none of the posts were shared during work hours or with the use of the employer's property, and despite the fact that the Facebook account was public, the employee could not be identified by their profile as an employee of the employer.
The employee challenged the dismissal, vehemently denying that their posts carried any offensive, homophobic, or antisemitic connotations.
The FWC upheld the summary dismissal, concluding that the employee's actions constituted a breach of the social media policy and contrary to his employer's public position. The FWC found that the out of hours conduct was likely to cause damage to the employment relationship and was incompatible with the employee's duty owed to his employer.
As social media continues to play a significant role in our professional and personal lives, employees and employers alike must navigate the complexities of online conduct.
Employers have taken proactive steps to safeguard their interests through policies and actions that address social media behaviour both inside and outside the workplace. While not every instance of negative social media behaviour will result in dismissal, the potential impact on an employee's tenure underscores the importance of responsible online engagement.
It is essential for employees to recognize the evolving boundaries between personal and professional realms. The cases of Colwell and Corry exemplify that such boundaries can extend beyond the workplace, emphasizing the need for discretion in online interactions, even when outside of work hours.
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.
