With the widespread use of social media, it's easier than ever for employers to view and monitor their employees' online activity. It's also common for coworkers to connect on these platforms, blurring the lines between personal and professional spheres.
If you're wondering how your social media use might affect your employment, the first place to check is your employer's social media policy. Most workplaces have one, outlining expectations for online behaviour - both during and outside of work hours - and potential disciplinary consequences for breaches.
However, the absence of a social media policy does not mean that an employer cannot dismiss an employee over their social media activity. Employees should be mindful and conscious about what they post on social media accounts, particularly if those accounts are public.
Whether your employer can dismiss you over something you posted on a personal social media account depends on the content, nature and gravity of the post. Employers may be prompted to act if a post:
- relates to the employment;
- identifies the employer;
- breaches the employer's social media policy;
- damages the employment relationship;
- undermines or contradicts the employer's reputation, business interests or values; or
- offends another employee.
Case Example: Corry v Australian Council of Trade Unions [2022] FWC 288
An employee was dismissed over several anti-Semitic, homophobic, transphobic and racist Facebook posts. The Fair Work Commission (FWC) found that there was a valid reason for dismissal because the views conveyed in the Facebook posts were incompatible with the employer's values, public position and policies, even though:
- the profile and posts did not identify the employer;
- the employer's policy did not explicitly cover social media activity outside of work hours; and
- the posts did not go viral or generate any complaints from other employees or members of the public.
Deputy President Masson found that the gravity of the conduct and the potential for harm required condemnation rather than any actual consequences alone.1 The gravity of the conduct is to be assessed by reference to the express and implied requirements of the contract of employment and the applicable company policies.2
Recent Development: Lattouf v Australian Broadcasting Corporation
More recently, the Federal Court of Australia has ordered the ABC to pay $70,000 to Antoinette Lattouf after it found the broadcaster had unlawfully terminated her employment over her views on the Israel-Gaza war.
Ms Lattouf successfully argued that she was dismissed due to her political opinion, among other things, as conveyed in a post on her personal Instagram account.
So while employers have an ability to monitor use of social media by employees, they cannot take any action against an employee for expressing a political opinion or any other protected conduct.
Footnotes:
1 At [130].
2 At [152].
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.
