CLOCKING ON AND CLOCKING OFF WITH SOCIAL MEDIA

It’s always been difficult to obtain clarity on the boundaries between home and work – increasingly so in the 21st century when our lives are becoming increasingly public. When does behaviour that happens out of hours affect the reputation of our workplace and our ability to carry out our job? Social Media presents us with another blurry line in the work / home distinction.

When does a social media post made in our own time become a workplace issue?

The leading authority on the ability of a workplace to terminate an employee for out of hours conduct was Rose v Telstra Corporation Limited (1998) AIRC 1592. In that case, it was decided that for an employee to be dismissed as a result of out of work hours conduct, the conduct must be “of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee”.

While this case is still an authority, given that the judgment was handed down in 1998, prior to the explosion of social media in our everyday lives, it is unsurprising that the law has had to evolve and continues to do so. Now that our personal lives can be broadcast to the public at large instantly, the line between the work and personal lives of employees is more blurred than ever.

Dismissal for Inappropriate Social Media Use

Just weeks ago, the High Court handed down their judgment in Comcare v Banerji [2019] HCA 23. A public service employee made comments on Twitter, outside of work hours, even anonymously, which led to her dismissal. Ms Banerji had tweeted criticism of the government despite the fact that all Australian public service employees are bound by the obligations of the Public Service Act 1999, which is further reiterated in policy and guideline documents that are provided to government staff. These obligations are specific in that Australian public service employees must not make public comments that are a harsh or extreme criticism of the government and for this reason, the High Court decided that Ms Banjeri’s dismissal was lawful.

Outside of the public service, there have been many cases before the Fair Work Commission in relation to dismissal regarding social media postings. One such case is O'Keefe v Williams Muir's Pty Ltd [2011] FWA 5311.

Mr O’Keefe went on an expletive filled rant about his employer and the fact that he had not been paid. He also made comments that could be construed as threats to a colleague. The workplace had a clear Employee Handbook and Deputy President Swan stated that Mr O’Keefe could not argue that he was not aware of what was expected of him and the consequences of his actions.

While the comments were made out of work hours and from his home, and while Deputy President Swan stated that Mr O’Keefe was “frustrated by his unresolved pay issues”. In the end it was decided that “the manner in which he ultimately dealt with the issue warranted his dismissal for misconduct.”

Unfair Dismissal Considerations

The High Court in the Banerji case did highlight the fact that a company cannot dismiss every employee for sharing social media posts that could be construed as derogatory of the employee’s workplace. The High Court noted that the test for unfair dismissal from the Fair Work Act 2009 (Cth) (Fair Work Act) at Pt 3.2 of course applies, and the dismissal cannot be “harsh, unjust or unreasonable”.

The High Court considered that an alternative to dismissal in cases where dismissal would be too harsh would be that a reprimand may be more appropriate. They state that the “level of the employee involved and the nature of the conduct in issue” should be carefully considered before dismissing the employee for inappropriate use of social media.

Commissioner Christopher Platt heard the matter of Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622 (16 August 2019) in the Fair Work Commission. Ms Creina in this case had posted a long and negative Facebook post about the new owner who had recently taken over the business and was subsequently dismissed. Commissioner Platt decided that the dismissal of Ms Murkitt was too harsh. He came to this decision upon the consideration of three factors:

- The employee’s length of service

- The fact the employee did not have any previous performance issues;

- A medical condition suffered by the employee which affected her decision to make the posts.

Similarly, in Renton v Bendigo Health Care Group [2016] FWC 9089 (30 December 2016), a worker was dismissed after tagging colleagues in inappropriate content and making specific reference to a work incident. Commissioner Bissett did concede that the post was grounds for dismissal. His reasons being that it had an impact on the health and safety of the co-workers who were named and who were ;friends’ of Mr Renton’s on Facebook, it could harm the reputation of the workplace given that Mr Renton had it displayed that he worked at Bendigo Healthcare and because it could be seen by the public. Furthermore, the Commissioner cited the fact that it was clear that the incident Mr Renton referenced when tagging his colleagues had happened at work.

However, Commissioner Bissett did ultimately decide that the dismissal was unjust, harsh and unreasonable owing to the fact that the employee had no other incidents in his employment record and the fact that he had young children, with one child diagnosed with ADHD.

Social Media Policies

It is very important for workplaces to have very clear social media policies. The policy should set out what is expected of their employees when it comes to social media use in protecting the workplace’s reputation and in maintaining confidence in their employees. It should also be clear on what the consequences are if there is a breach of the policy, bearing in mind the unfair dismissal provisions of the Fair Work Act.

Employers should proceed with caution when dismissing an employee for breaches of the policy and consider how serious the breach was, the length of time the employee has been employed and the employee’s performance record before making the decision.

By Kayte Lewis and Gemma Banister

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