As a readily accessible platform for publicly sharing information and opinions, employees are able to use social media to shape the beliefs of others and find or support like-minded communities.
However, the landscape of social media and its connection to the workplace has evolved as the courts have recognised the need for businesses to protect their legitimate business interests and reputation. This has lead to both employers and employees seeking advice about their legal rights from a workplace lawyer.
The context of social media posts, irrespective of its anonymity or distribution to limited viewers, should be carefully considered.
Posting on social media outside of work hours, about matters contrary to an employers’ position, may be grounds for termination on the basis of serious misconduct.
Author: Farrah Motley, Legal Principal of Prosper Law and a workplace lawyer.
Is a social media post grounds to dismiss for serious misconduct?
Firstly, if you have been dismissed, or are considering terminating an employee, on the basis of a social media post, you should seek advice from a workplace lawyer.
An assessment applied by the courts (and taken into account by an employment law firm when giving legal advice), determines whether a valid reason for a serious misconduct termination exists, including:
whether the employees’ conduct is wilfully or deliberately inconsistent with their contractual obligations; and
whether there is a potential for such conduct to pose a risk to the reputation, viability or profitability of the workplace, or threaten the health and safety of others.
A recent unfair dismissal decision by the Fair Work Commission, in Conrad John Corry v Australian Council of Trade Unions T/A ACTU [2022], confirms that the line between work and home has become more blurred.
There is now less focus on whether the conduct was made outside working hours, with a heavier focus on the gravity and context of posts or comments. As any workplace lawyer will tell you, it is also relevant whether the conduct indicates a repudiation of an employee’s duties or obligations to their employer.
A number of recent decisions have demonstrated that in assessing social media termination matters, the courts will consider:
employment contracts, policies and training in place
the values of the company
the public position of the company
whether an implied duty of fidelity was breached by the employee
whether procedural fairness was followed by the employer
the potential risks to the employer or the health and safety of others
How social media posts or comments are termed holds little weight in light of the broader context of social media posts. Rather, the tone and context of the social media posts matter more, along with how they could be perceived to be supporting views that are contrary to those held by the employer.
An employment law firm can provide further guidance about the how social media posts may or may not breach an employment agreement.
Linking social media use to the workplace
Over time, as the courts (and every workplace lawyer) have examined various positions in social media cases, it has become less relevant that posts and comments are made from restricted accounts, outside of working hours, or from accounts that do not identify an employee’s place of work.
A workplace lawyer can provide legal advice on whether social media use is sufficiently connected to the employment relationship.
The potential for posts or comments to be viewed by colleagues, or social media connections who know where the person works, or the ability for such posts or comments to be shared, reported or inquired about in the context of their work, can lead to the employee’s identity can be discovered and linked back to the workplace, and give rise to serious misconduct.
A workplace lawyer can further shed light on this area of the law when it comes to the dismissal of employment due to social media posts.
Political opinion protections
An employee’s political opinions are of course protected under the Fair Work Act 2009. This means that an employer cannot take adverse action against employees for holding particular political opinions.
However, employers can impose reasonable requirements on employees' social media use, to protect the company’s interests in maintaining a positive reputation.
If you need legal advice about what employees can and can’t do when it comes to social media, you should get workplace legal advice.
Employees who conduct themselves in a manner that exposes opinions on social media, in opposition to the views of their workplace, should consider the duties they are obligated to uphold in their employment relationship, regardless of entitlement to hold any such views.
Social media protections for employers
For employers, it is important to be clear on duties and obligations an employee is expected to uphold throughout the course of their employment. You must also be clear about conduct that may give rise to disciplinary action.
This is achieved through clear and consistent contractual terms, policies and training, covering expectations. A workplace lawyer will be able to provide advice on these documents and expectations, but they should cover:
duties and responsibilities
social media use
serious misconduct matters
bullying, harassment and discrimination
Additional messaging around company values, public policies and positions on significant matters, communicated clearly and consistently, further aids the removal of doubt as to its meaning and enforcement before the courts.
How can Prosper Law help?
Prosper Law is highly experienced in providing workplace legal advice. We can draft employment agreements, provide the best workplace legal advice and negotiate the best outcome for you.
Contact the team at Prosper Law today to discuss how we can provide you with workplace legal advice for a fixed fee or at affordable hourly rates.
Farrah Motley | Legal Principal
PROSPER LAW - A Commercial Law Firm for Businesses
M: 0422 721 121
A: Suite No. 99, Level 54, 111 Eagle Street, Brisbane, Queensland Australia 4000
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