The explosion of social media use over the years presents many challenges to the employment relationship. The use of social media has blurred the boundaries between work and non-work life. This has led to many employers having to deal with situations where employees have posted something in their private capacity on their own social media accounts, which has (or is likely to have) a negative impact on the employer.

In a recent article by Louise Thornthwaite,[i] published in the Journal of Industrial Relations, Ms Thornthwaite argues that historically the Fair Work Commission (“FWC”) took the view that posts on social media were public and as such were fair game for employers, in determining whether to terminate the employee’s employment. However, she now posits that it appears the FWC has moved away from this view and have increasingly recognised that employees are entitled to an expectation of privacy and not all social media activity is open to employer scrutiny and nor can it be relied upon to validate a termination.

The question of whether a dismissal is justified depends on a number of factors including both the nature of the conduct and the subsequent actions of the employer. In this article, we will examine the proposition expounded by Ms Thornthwaite and the approach the FWC takes on the issue of social media and misconduct.

There is no doubt that the explosion of social media and its use has now become part and parcel of our every day lives including our working lives. The implications for employers are significant and as such the manner in which employers’ deal with this issue is vital to ensuring that they are able to properly protect business interests without alienating a workforce for whom social media is as important as the mobile devices they use to access social media. To this extent, most employers have introduced policies dealing with the issue. How then do these policies interact with the freedom of an employee, and how far can they go to protect an employer from conduct that occurs outside the workplace in the employee’s personal time?

This is the very question with which the FWC and other courts and tribunals have been grappling for some time. Although, earlier cases did seem to suggest that social media posts on Facebook were akin to public comments and therefore there could be no expectation of privacy and as such regardless of when and where they occurred, were matters that could give rise to a valid reason for termination, it is my view that a careful reading of the facts of those cases will show that regardless of these sentiments, the reason the FWC found the posts could be relied upon was really a result of the nature of the posts and the conduct more generally. There is no doubt that more recent decisions of the tribunal have appeared to accept that not all social media posts are public and that depending on the context, including the privacy settings applied, there may in fact be a reasonable expectation of privacy by the employee, in circumstances were the post regardless of this expectation gives rise to real concerns regarding the ability of the employee to continue in employment, the FWC has found the posts may give rise to a valid reason for termination.

Notably, in circumstances where an employee’s alleged misconduct on social media occurs outside of work, the Commission has tended to apply the following principles enunciated in the 1998 decision in Rose v Telstra Corporation Limited:

It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

· the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

· the conduct damages the employer's interests; or

· the conduct is incompatible with the employee's duty as an employee.

This reasoning still appears to be apposite and applicable. By way of example, in Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186, Mr Singh was a baggage handler employed as a casual employee on a regular and systematic basis by Aerocare Flight Support, an aviation ground handling and services company. Mr Singh held an airport security identification card and was authorised to work within restricted security sensitive areas of Perth Airport. Mr Singh was dismissed by his employer after he had authored Facebook posts allegedly supporting ISIS and Islamic extremism including sharing a post from an Australian Islamic Group and included his own commentary, being the words “We all support ISIS”. Aerocare was then informed about the posts by two other workers who were friends with Mr Singh on Facebook. As a result, Aerocare undertook an investigation and met with Mr Singh to discuss with him that the Facebook posts were contrary to their social media policy and given the nature of his job, represented a security risk. Mr Singh proclaimed that the posts had been sarcastic, he was opposed to ISIS and extremism.

In its decision, the FWC accepted that the ISIS post in particular did breach the social media policy and Mr Singh had participated in relevant training in relation to the policy. However, the FWC found that the dismissal was unjust, harsh and unreasonable because Aerocare:

· failed to thoroughly review Mr Singh’s complete Facebook newsfeed which would have led to the conclusion that he did not truly support ISIS;

· spent only 10 minutes deliberately his response to the allegations put to him, suggesting that the decision-makers did not properly consider his responses and the dismissal was premeditated; and

· did not consider any other alternative form of disciplinary action other than dismissal.

The FWC did not however, refuse to take account of the posts because they were made in Mr Singh’s private time, with the protections of privacy settings.

By way of contrast, in Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174, a more recent decision dealing with the use of social media, the FWC upheld the dismissal of an employee who sent a pornographic video to colleagues outside of work hours despite no formal complaint being lodged by the employees who received the video. The decision to dismiss the employee arose when Mr Colwell had been drinking on his day off and sent a pornographic video via Facebook Messenger to his Facebook friends which included 16 male and 3 female work colleagues. One particular female responded to him with “Are you serious? Mate don’t send me that shit”. The worker posted an apology on his Facebook page the following day.

In support of his unfair dismissal claim, Mr Colwell argued that there was no reason to dismiss him because there was an insufficient connection between the conduct and his employment. In particular, the employee relied on the fact that the video was sent outside of work hours and did not involve any work-related IT equipment. Furthermore, he argued that communications between friends was not a matter for his employer, any communication which some friends may find offensive are matters for resolution between those friends and not a matter that the employer may regulate.

Notably, over the years, Sydney International had taken steps to encourage more women to work in the stevedoring industry and as a result, introduced workplace policies addressing bullying, harassment and misconduct of a sexualised nature. Mr Colwell had received training in relation to these policies, however Sydney International did not have a social media policy in place. Despite not receiving any formal complaint from the recipients of the message, the message came to the attention of Sydney International who subsequently conducted an investigation and terminated Mr Colwell’s employment due to a finding of serious and wilful misconduct including breach of company policy.

In its decision, the FWC disagreed with Mr Colwell, stating that “if an employee engages in conduct outside of the physical workplace towards another employee that materially affects or has the potential to materially affect a person’s employment that is a matter which legitimately may attract the employer’s attention and intervention”. In this regard, the FWC found that Mr Colwell was Facebook friends with colleagues only because of their work relationship and therefore there was a relevant nexus or connection to his employment. Interestingly, the FWC also noted that it was not satisfied that the conduct constituted a breach of the policies as the policies did not include out of hours conduct or conduct via social media.

Relevantly, in relation to the fact no actual complaint was made by any of the recipients of the video, the FWC also took the opportunity to state the following:

it is the situation that employers may fall into the error of thinking that a formal complaint or allegation is required before making an enquiry into an issue of conduct such as bullying or harassment - but this is not the case and a failure to act may present risks that might otherwise have been avoided.”

Lesson for employers

Although there certainly does appear to be more recognition by the FWC and other courts and tribunals of a reasonable expectation of privacy by employees regarding private social media posts, this does not mean that conduct by employees on social media is beyond the reach of employers. Rather, it is apparent that the FWC will apply the test as expounded in Rose v Telstra Corporation and take into account all the relevant facts, including the fact that an employee has as a reasonable expectation of privacy, in deciding that notwithstanding this expectation their activities on social media are sufficient in all the circumstances to give rise to a valid reason for termination. As is clear from the competing outcomes in the cases discussed in this article, cases involving the dismissal of employees on the basis of social media misuse are varied. It is clear, however, whether conduct on social media justifies termination remains an area of contention and will depend on the facts and circumstances of each case, including the extent to which the employer is infringing upon the privacy of its employees when taking action over unsavoury social media conduct; the manner in which the employer became aware of the conduct and the seriousness of the conduct itself. There will always need to be a sufficient nexus between the conduct and the employment relationship to justify a dismissal.

It is therefore critical employers have a robust social media policy that covers conduct that occurs outside of the workplace and outside of working hours, or that may impact upon other persons connected to the workplace. It is also important to have detailed workplace policies that deal with harassment, bullying and discrimination. Importantly, workplace policies should provide the employer flexibility in how it deals with these matters. Any policy however, will need to balance the interests of the employer in protecting the business with the real and proper expectation of its employees to privacy.

Other strategies to manage the risk of social media misuse includes providing staff appropriate training and implementing software to monitor or limit excessive or objectionable use of social media by employees during work hours.