An employee says something nasty about their boss or company on their private social media page. The boss fires them because of what they wrote. Is this legal?

The line between what constitutes a public or private online communication is increasingly being blurred, particularly on social media. Expressing a political or personal opinion on Facebook, Twitter, Instagram or any other personal social media account has in fact led to many people losing their job.

Private social media posts can have a detrimental effect on the business you work for

People have been sacked because they posted something on Facebook that was offensive. Under the Fair Work Act, even though a person's post may not relate to the business they work for, the links can easily be followed to reveal their place of work, which could bring the business into disrepute.

Last year, Cricket Australia sacked a female employee after she made comments on Twitter that were seen to be critical of the Tasmanian government's abortion policy.

Also in 2018, the Disney company sacked a film director from an upcoming Guardians of the Galaxy film because of tweets he had posted years ago, joking about rape and paedophilia.

Social media policies must be clear and understood by all employees

It's important for all businesses to have a social media policy, explaining which forms of conduct can be deemed to bring the business into disrepute.

Employers can take action against an employee for inappropriate social media use, as long as they have explained the company policy and provided some form of training in the policy.

In saying this, a number of people have successfully challenged their dismissal in the Fair Work Commission as unfair, arguing that they didn't understand their post could be seen by the public or be traced back to where they worked.

Do employees have a right to privacy when posting comments on social media?

A study undertaken by Macquarie University's Associate Professor Louise Thornthwaite indicates that the Fair Work Commission is increasingly recognising an employee's right to privacy in their social media use. (See Social media and dismissal: Towards a reasonable expectation of privacy?)

The research found that when social media began to gain prominence with the appearance of Facebook in 2004, the commission regarded all posts as public. However, in recent years the commission has begun to look at how employers obtain information on employees' private posts and the reasons for their investigation.

So, do employees have the right to discuss their working lives in private posts, including gripes with bosses?

The Fair Work Commission has reached a number of different unfair dismissal verdicts for workers who were sacked after posting offensive material about fellow employees or bosses on social media. With unfair dismissal decisions based on section 385 to section 394 in the Fair Work Act, the cases can vary depending on the circumstances.

Dismissals that have been upheld by the Fair Work Commission

The commission recently upheld the dismissal of a manager who had made offensive remarks about a new employee on Facebook.

In another case, Fair Work agreed with the dismissal of a manager who used a LinkedIn account connected to his employer to send abusive messages to an ex-partner.

And a worker who was sacked for sending messages of a sexual nature on Facebook, including to some of his colleagues, failed to be reinstated.

Compensation that has been awarded to employees for unfair dismissals

By contrast, a worker won $2000 compensation for being sacked after tagging colleagues in sexual Facebook posts. Fair Work said the dismissal was too harsh for a first offence, even though the post was against workplace policy.

In another ruling, a worker won $6200 compensation after being sacked for posting offensive comments on Facebook about a person believed to be associated with his employer. The worker told Fair Work that the posts were about a different company.

Job reinstated after offensive post deemed to be private rather than public

In a decision in 2012, a truck driver who had been fired for posting abusive comments about his boss on Facebook was reinstated. (See Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097 and Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157.)

The court found that while the abuse might be grounds for dismissal, the private Facebook post had limited circulation and could be considered private.

Consider the consequences before posting nasty comments on social media

One simple rule to keep in mind before posting an offensive comment about your employer, colleague or customers on social media, is that it can be seen by anyone. Even with privacy settings turned on, and separate private and professional accounts, there really are no secrets on the internet.

So before hitting "Share" or "Post" or "Tweet", take some time to consider the reaction of your boss or colleague if they were to see your post. Because, although you may be posting on your own private page, your boss can easily find out about it and take action against you. Under workplace laws, you can be sacked for bringing your employer into disrepute or for a breakdown in the workplace.

If you are an employer, be sure to develop a clear and customised social media policy for your business, explaining the required standards and consequences of a breach. For it to be effective, all employees must be made aware of the policy and understand it in its entirety.

Nathan Luke
Employment law
Stacks Law Firm

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.