By Tara Holland

Over the past decade there has been an exponential rise in the use of social media to express oneself by comment and, more recently, by photos. The saturation of social media in everyday life has acted as a catalyst in employment cases because posting comments or photos on social media is not ‘private’ even if your settings are set to ‘private’.

As seen in recent news, ABC News article published on 7 August 2017, Facebook liking anti-government posts banned under new Public Service Policy, there is a growing climate of employee restriction in participating in any private email or social media criticism of your employer.

Fundamental questions are raised for employees and employer’s alike regarding rights and responsibilities when it comes to posting on social media. For an employer, what options do you have with regards to work related social media posts made by a current employee or social media posts by a prospective employee? As an employee or prospective employee, what rights do you have when faced with a potential issue over your social media account or posts?

In Part 1 we discuss the law around social media and current employees and in Part 2, we discuss the law in regard to potential employees and what an employer can do with social media posts/photos in respect of a potential employee.

The Law

Australia has firmly established industrial and employment laws which lay the groundwork for what rights and responsibilities are held respectively for the employer and employee. Most of those rights are contained in the Fair Work Act 2009 (Cth) (‘FWA’). [1]

Nothing in the FWA specifically mentions ‘social media’ in relation to the conduct and performance of an employee or potential employee. However, there is settled case law and the rights and duties in the FWA for employees and employers may apply to social media issues

Current Employee

The discipline that an employer carries out over an employee needs to have the appropriate weight and be consistent with action taken with other employees.  It is unlikely that an employer can summarily dismiss (sack on the spot) an employee based on a post on social media unless, it is threatening or comprises of serious misconduct.[2]  However, if there is a sufficient connection between the employee’s conduct and the employer, the posts can be linked to the workplace/staff member/employer, and they could be considered damaging to the company’s reputation, the employer may be able to lawfully dismiss that employee.

It should be noted that a post on social media between ‘friends’ has a wider audience than a conversation between a person and a colleague.  Furthermore, employees should be aware of ‘friends’ that may also be employed by the same employer.  A leading case of O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams the Good Guys[3] specifically highlights the fact that comments made in private, on a private computer are not necessarily ‘private’:

“…the fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before [the female colleague] was advised of what had occurred … the separation between home and work is now less pronounced than it once used to be”.

In other circumstances, a post may constitute enough to give a ‘warning’ for unsatisfactory performance, which has the potential to lead to dismissal. Before an employer can dismiss an employee, they must follow a specific procedure, which is  set out in s387 of the FWA and outlined below.

If the employee’s performance and behavior is constantly unsatisfactory and the employer has followed this criteria, the employee could lawfully be dismissed.

An employer must ensure that:

• they have notified the employee of the warning and specified that dismissal would be a risk if there is no improvement;
• the warning is related to the employee’s capacity or conduct;[4]
• the employee has had an opportunity to respond in relation to the issue;
• they have provided an opportunity for the employee to rectify the concern over a reasonable time period[5];
• if the workplace has more than 15 people in employ, they employ aa Human Resources person and ensure a policy and procedure is in place.

If an employer does not follow the procedures above before dismissing an employee, the employer may have unlawfully dismissed the employee. This could result in the employee filing an application for unfair dismissal with the Fair Work Commission.[6]

In short, if you are an employee and you want to have a rant about work, don’t put it on social media. Just to be safe, perhaps find another way to vent, out loud, in private.

Please note that each case can vary depending on the circumstances and whether or not an employee is covered under the FWA. This article in not written as advice but as a basic summary around social media is the workplace.  

Just Us Lawyers act for employers and employees. If you find yourself involved in an employment dispute or unfair dismissal matter, our team of employment experts will get you through the system, whatever side you are on.

[1]The general protections provisions provide protections for national system employers and national system employees, organisations and other associations of national system employers or employees. It also provides protections in some circumstances for other persons, including employers and employees in State industrial relations systems, independent contractors and the persons who engage them (principals), State registered industrial associations, and other associations of State. Explanatory Memorandum to Fair Work Bill 2008 [1334].

[2]O’Keefe William Muir Pty Ltd t/as Good Guys

[3] [2011]FWA 5311

[4]Unfair Dismissal Bench book: Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237 [16]. See also Davis v Collinsville Coal Operations,

(AIRCFB, Harrison SDP, McCarthy SDP, Redmond C, 19 November 2004) PR953370 [49]; Fischer v Telstra

Corporation Limited (AIRCFB, Ross VP, Duncan DP, Redmond C, 1 March 1999) Print R2558 [29].

[5]Fastidia Pty Ltd v Goodwin (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280 [43]. Seealso Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 152 [58]‒[80].

[6] Some employees are not covered by unfair dismissal, see FWA s382.