Key Points:

APS employers have been taking an employee's political activity out of hours into account when making a termination decision, but there is little court guidance.

It is an election year and if one thing is certain, it is that employees will be keen to share their views by blogging, posting, hashtagging, regramming and sharing.

Which means it is time for employers to think about their social media policies and the extent to which they are able to legitimately discipline employees for their comments on social media, particularly where those comments are political in nature.

The issues for employers

Social media has been a hot topic in the employment law space for a while, with no shortage of colourful cases coming before the Fair Work Commission.

Ms Banerji was running a Twitter account under the handle "LALegale", hairdressers have been Facebooking their displeasure about the size of their bonus, Linfox employees have been making discriminatory comments about their managers, and some people have even taken to calling their employers colourful names.

This sort of behaviour naturally causes employers to be concerned, particularly where the nature of the comments is embarrassing or disrespectful to the employer, its business or other employees. It can be tempting for employers to take the approach that any disrespectful conduct by employees on social media justifies termination.

Some general principles

The Fair Work Commission has accepted that employers can restrict what their employees say on social media and discipline employees who step over the line.

Not everything an employee says or does on social media, however, is a valid reason to terminate.

There are a few questions that employers need to keep in mind in this space:

  • if the conduct occurred outside social media, would it warrant termination? Employers can't assume that just because it happened on social media (and might tend to embarrass the employer) that there is a valid reason to terminate;
  • is there a legitimate connection to the workplace? does the conduct somehow affect the employer, its reputation or business?
  • did the conduct occur in a private forum (eg. private messages on social media) or in a public space for all the world to see?
  • will the conduct affect the employee's ability to perform their duties at work?
  • has the employee breached any social media policy? In particular, if the comments relate to political activity or public comment on the affairs of the business, is the policy a lawful and reasonable direction?

How can APS employers manage social media use?

Unlike their private sector counterparts, APS employees are subject to statutory duties that throw into the mix additional considerations for APS agencies when dealing with social media misconduct.

Critically, APS employees are under an obligation to:

  • uphold the APS Values at all times, which includes impartiality;
  • uphold the integrity and good reputation of the APS.

What happens then when an APS employee uses social media to attack government policy and overtly engage in debate about matters of politics?

In our view, that sort of behaviour is likely to be inconsistent with the obligations imposed on APS employees, and the starting point is the same as any other conduct on social media — APS employers will need to have regard to the sorts of considerations outlined above.

Given the statutory obligations imposed on APS employees, however, two additional considerations arise: do those obligations curb the implied freedom of political communication? Should the freedom of political communication be an active consideration for decision-makers when considering whether to terminate employment?

Following Banerji v Bowles [2013] FCCA 1052, which found that APS employees have no unfettered right to express political opinions publically, APS employers have taken the view that it was within the realm of lawfulness to take into account an employee's political activity out of hours in making a termination decision.

It's not clear however whether that position will stand the test of time. While it hasn't been overturned yet, neither the High Court nor the Full Court of the Federal Court have yet to resolve the issue. We expect it will take the decision of a superior court to give clear guidance to APS employers on the extent to which they are required to have regard to the implied freedom when disciplining employees for political activity on social media.

Watch this space

No doubt the impending election will encourage some employees to take to social media to express their views. For APS employers in particular, that is likely to require greater attention to the use of social media by employees.

With that in mind, now is a good time for employers to fine tune their social media policies and prepare themselves for #employeesbehavingbadly.