In the recent case of Malcolm Pearson v Linfox Australia Pty Ltd  FWC 446, the Australian Fair Work Commission recently held that it is not “harsh, unjust, or unreasonable” to expect an employee to comply with a social media policy that operates outside, as well as inside, the workplace.
Mr Pearson, a former employee at Linfox, refused to sign Linfox’s social media policy because it “constrained his actions outside of working hours”.1 He was dismissed from Linfox and brought proceedings for unfair dismissal in the Fair Work Commission (the Commission). The Commission dismissed the case on the basis that the social media policy was a legitimate exercise by Linfox in protecting its reputation and security.
Valid reason for dismissal required
Under Australian employment law, the existence or not of a valid reason for dismissal is a core issue in deciding unfair dismissal applications. The absence of a valid reason will ordinarily render the termination unfair. To be valid, the reason must be objectively valid and decided on the basis of an objective analysis. It is not sufficient for an employer to show that he or she acted in the belief that the termination was for a valid reason. The reason must not be capricious, spiteful or prejudiced. It must be sound and defensible and valid in the context of the employee’s capacity and/or the operational requirements of the employer’s business. It must also apply to be relevant within the practical sphere of the employer/employee relationship.
Is a refusal to sign a social media policy a valid reason for dismissal?
This was not Linfox’s first time before the Commission. In a previous case, a former employee commenced proceedings after Linfox dismissed him for posting derogatory Facebook comments concerning two of its managers. In that case, the Commission recognised that the posted comments were “outrageous and distasteful”, but found that Linfox did not have grounds to dismiss the employee. Linfox did not have a social media policy at the time of the dismissal and hearing. Commissioner Roberts stated that, “In the current electronic age, not (having a social media policy) is not sufficient…many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies. Linfox did not”. 2 As a result, there was not a valid reason for the termination of the employment.
In this case, Linfox (presumably having learned from its previous experience) had implemented a social media policy and Mr Pearson’s failure to acknowledge it, amongst other shortcomings, constituted a valid reason for dismissal. The Commission found that the establishment of a social media policy is a “legitimate exercise in acting to protect the reputation and security of a business”.3 The Commission recognised that the natural overlap between public and private life makes such an “invasive” policy necessary.
"It is difficult to see how a social media policy designed to protect an employer’s reputation and the security of the business could operate in an 'at work' context only…Gone is the time where an employee might claim posts on social media are intended to be for private consumption only."
How does this affect your Australian business?
The Commission’s decision in this case is a timely reminder that Australian employers should consider establishing a social media policy to assist in managing their employees’ conduct outside of the workplace in circumstances where it may adversely affect the employer’s reputation or security. When establishing policies of this sort, the objectives must be clear to employees and the policy should not seek to expand in scope beyond the protection of reputation or security.