How a Social Media Post may be Grounds for Dismissal
Inherent in the employment contract are certain duties owed by an employee to an employer. These include a duty of good faith (to act in the employer’s best interests), not to bring the employer into disrepute, and to protect confidential information. These duties can extend beyond the physical workplace, and employees can be reprimanded, even terminated, for activities that breach these duties, even if they occur during their own time.
Misconduct or severely breaching the terms of an employment contract can be grounds for dismissal. ‘Serious misconduct’ may be cause for immediate dismissal (termination without notice). Serious misconduct includes wilful and deliberate conduct that is inconsistent with the continuation of the employment contract; conduct that risks serious and imminent risk to a business’s reputation or profitability, or the health and safety of a person; and engaging in theft, fraud, assault or sexual harassment in the course of employment.
Cases Where Social Media Activity Led to Dismissal
- In Roche v The Trustee for the Dolphin Hotel Unit Trust [2024] FWC 606, a bar supervisor was dismissed for using WhatsApp and Facebook group chats to criticise management and encourage negativity among staff, creating a ‘management free space for [employees] to vent’. The FWC agreed this created a ‘divisive atmosphere’ and upheld the dismissal, noting the chats were ‘clearly related to working at the [hotel]’.
- In Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288, an ACTU employee was summarily dismissed for highly offensive posts on his personal Facebook account that included antisemitic, homophobic, transphobic, and racist material. Despite the posts being on a personal account with limited friends, the FWC found the conduct to be serious and inconsistent with ACTU’s values. The FWC upheld the dismissal, citing that the employee’s actions damaged the employer’s reputation and constituted serious misconduct due to a breach of explicit policies under his contract of employment.
Disputes Over Workplace Dismissal
Connection
A key consideration when evaluating a dismissal for an employee’s behaviour out of hours is showing sufficient ‘connection’ between the conduct and the workplace. A post made in an employee’s private time can be considered work-related if the post:
- damages the employer’s reputation or interests
- undermines the employer’s trust and confidence in the employee
- is incompatible with the employee’s duties
- identifies the employee as linked to the company
Social media policy
The existence and clarity of the employer’s policies are relevant. For example, does the employer have a comprehensive and well-communicated social media policy covering acceptable use, confidentiality, bullying, discrimination, and bringing the company into disrepute?
Nature and severity of the social media post
The content of the post will be assessed as to whether it was:
- offensive, discriminatory, or harassing (racism, sexism, bullying)
- criticising the employer, colleagues, or clients (defamatory, derogatory)
- disclosure of confidential information
- an impersonation or false representation
- inciting violence or illegal activities
Impact on the employer
The impact on the employer’s legitimate interests will be assessed as to whether there was actual or potential:
- reputational damage (both internally and externally)
- loss of trust and confidence in the employee
- commercial or financial harm to the business
- disruption to workplace harmony
Context of the post
Context considers:
- whether the post was made during or outside work hours
- if company devices or personal devices were used
- if the post was public or in a ‘private’ group (and how easily it could become public)
- the employee’s role and level of responsibility within the company – senior employees are often held to a higher standard
Employee Rights and Protections
- Procedural fairness: If misconduct has occurred, the employer must follow a fair process. This generally involves conducting a fair investigation, giving the employee an opportunity to respond to allegations, and issuing warnings (where relevant).
- Unfair dismissal claims: If eligibility criteria are met, an employee may have grounds to make an unfair dismissal claim. The FWC will determine if the dismissal was harsh, unjust, or unreasonable. Remedies for a successful claim can include reinstatement or compensation.
- General protections: These protect certain workplace rights, including freedom of association and certain political expression. However, these are not absolute and are balanced against the employer’s legitimate interests.
- Privacy considerations: While employers have some rights to monitor, they must generally comply with Australian Privacy Principles, especially regarding information collected from social media.
If you are dismissed or facing allegations in your workplace, you should seek legal advice immediately.
Social Media Tips for Employees
- Understand your workplace social media policy: Policies typically include expectations around acceptable use of social media, company representation, confidentiality, violations and enforcement, strategies for handling online criticism, and dispute resolution. Ask for clarity on any expectations that you are unsure of.
- Be professional and think before you post: Even outside work hours, your online presence reflects on you, and potentially, your employer. If you wouldn’t say something in the office, don’t post it online.
- Adjust privacy settings: While helpful, remember privacy settings are not foolproof. Employees should not assume that anonymity or privacy settings will shield them. Content shared within a ‘private’ group can easily be screenshotted and disseminated, quickly becoming public.
- Separate personal and professional online identities: Consider having distinct profiles or being very mindful of what you post on public-facing accounts.
- Address workplace issues through official channels: If you have grievances, use your HR department rather than airing them on social media.
By understanding your rights, your employer’s expectations, and the potential consequences, you can reduce workplace issues over social media posts.
If you or someone you know wants more information or needs help or advice, please call (03) 9600 2768 or email [email protected].