While more and more organisations are recognising the advantages of encouraging employees to use social media at work, it is the misuse o social media out of work that often impacts the employment relationship.
It seems that many employees still fail to recognise that what they do online away from work is not always private and can have a significant impact on the employment relationship. Equally many employers who become aware of inappropriate on line conduct are often unsure whether they can discipline employees over this conduct.
There have (and continue to be) unfair dismissal cases involving employees terminated for something they have said or done on social media. These cases have included situations where an employee has:
- Posted the comment on Facebook “wonders how the f*** work can be so f***ing useless and mess up my pay again c**** are going down tomorrow”;
- Publicly aired their dissatisfaction with their employer, posting on Facebook “Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!”;
- Expressed their discontent in rather public terms, posting on Facebook: “working long weekends at normal pay sucks b**** hard core” and describing her employer as “stingy C****”; and
- Posted about a new employee the comment “on behalf of all the staff at [name of company] I would like to welcome our newest victim of butt rape [name of new employee]. I’m looking forward to sexually harassing you behind the stationary cupboard big boy.”
In all of these cases, the Facebook comments were made outside of work and the employees who were all dismissed after their comments became known to their employers attempted to argue their comments couldn’t be relied on to terminate the employment.
Using Out of Work Conduct to Discipline Employees
In deciding cases involving out of work online conduct, the Fair Work Commission (FWC) has consistently applied the principles in Rose v Telstra Corporation  AIRC 1592 (Rose Case) (which did not relate to social media transgressions). This case identified three circumstances which entitles an employer to terminate an employee for out of work conduct – regardless of the nature of the out of work conduct. Those circumstances are where the conduct outside of work:
- viewed objectively, is likely to cause damage to the employment relationship;
- damages the employer’s interests; and
- is incompatible with the employee’s duties as an employee.
Is It Damaging the Relationship?
Applying the first of these circumstances to the social media context this means that if an employee does something online, for instance making comments about their manager or supervisor that are so disparaging that the manager or supervisor is going to find it difficult speaking to the employee again let alone working with them, this is probably enough to have damaged the working relationship.
Is It Damaging the Employer’s Interests?
An example of doing something online that damages the employer’s interests is the case of opera singer Tamar Iveri, who was dropped from Opera Australia’s production of Othello in response to homophobic posts that appeared on Ms Iveri’s Facebook page. Pressure mounted on Opera Australia to distance itself from the opera singer after the posts became public and the company was inundated with complaints and threats from its members to cancel their subscriptions. The opera singer (although a contractor) was clearly associated with Opera Australia which meant her out of work Facebook posts had a real impact on Opera Australia’s interests.
Is It Incompatible With the Employee’s Duties?
The third circumstance is related to the nature of the employee’s employment and requires a consideration of whether there are particular standards or expectations of behaviour that apply. So conduct online that could be regarded as incompatible with a school teacher’s or a police officer’s duties (such as online boasts about recreational drug use outside work hours) may not be incompatible with the duties of a truck driver.
What is clear from the cases that have applied the Rose Case principles is that an employer can rely on an employee’s out of work conduct on social media to take disciplinary action (including dismissal) so long as there is a clear connection between that conduct and the employment.
As the FWC has indicated in a number of decisions, employees are entitled to their personal opinions about work related issues but they are not entitled to disclose them to the “world at large” via social media where to do so reflects poorly on their employer and/or damages its reputation and viability.
We remind employers, particularly those companies entering Australia from abroad, to ensure that the contracts for their senior employees contain clear terms about the length of the notice period on termination. A disciplined approach will ensure they are not required to pay “reasonable notice” on the departure of a long- serving senior employee because this term was implied into the contract in the absence of an express term.
In June this year the NSW Supreme Court awarded a senior employee, who left her employer after 24 years’ service as “Financial Controller - South Pacific”, the sum of more than AU$1 million in damages, and a significant part of that consisted of reasonable notice amounting to ten months. The employer had provided only five weeks’ notice. The US- based employer had provided this employee with a letter of appointment which contained no express provisions about termination.