A social media post may be grounds for dismissal. The content of what is said in the social media post is key to deciding whether it gives an employer the right to terminate the employment contract.
As a readily accessible platform for publicly sharing information and opinions, employees are able to use social media to shape the beliefs of others and find or support like-minded communities.
However, the landscape of social media and its connection to the workplace has evolved as the courts have recognised the need for businesses to protect their legitimate business interests and reputation. This has led to both employers and employees seeking advice about their legal rights from a workplace lawyer.
The context of social media posts, irrespective of their anonymity or distribution to limited viewers, should be carefully considered.
Posting on social media outside of work hours, about matters contrary to an employer’s position, may be grounds for termination on the basis of serious misconduct.
Firstly, if you have been dismissed, or are considering terminating an employee, on the basis of a social media post, you should seek advice from a workplace lawyer.
An assessment applied by the courts will determine whether a valid reason for a serious misconduct termination exists, including:
And court decisions are taken into account by lawyers when giving legal advice.
A social media post has been considered in a recent unfair dismissal decision. Click here to view the decision of Conrad John Corry v Australian Council of Trade Unions T/A ACTU [2022]. That case, heard by the Fair Work Commission, confirms that the line between work and home has become more blurred.
There is now less focus on whether the conduct was made outside working hours. Instead, there is a heavier focus on the gravity and context of posts or comments. As any workplace lawyer will tell you, contractual repudiation is also relevant. If the conduct indicates a repudiation of an employee’s duties or obligations to their employer, there is a serious breach of contract.
A number of recent decisions have demonstrated that in assessing social media termination matters, the courts will consider:
How social media posts are written holds little weight in light of the broader context of the posts. Rather, the tone and context of the social media posts matter more. Along with how they could be perceived to be supporting views that are contrary to those held by the employer.
An employment law firm can provide further guidance. Legal advice will explain how social media posts may or may not breach an employment agreement.
In answering the question ‘is a social media post grounds for dismissal?’, it’s important to draw a connection between the post and the workplace.
Over time, as the courts (and every workplace lawyer) have examined various positions in social media cases, it has become less relevant that posts and comments are made from restricted accounts, outside of working hours, or from accounts that do not identify an employee’s place of work.
A workplace lawyer can provide legal advice on whether social media use is sufficiently connected to the employment relationship.
The potential for posts or comments to be viewed by colleagues, or social media connections who know where the person works, or the ability for such posts or comments to be shared, reported or inquired about in the context of their work, can lead to the employee’s identity can be discovered and linked back to the workplace, and give rise to serious misconduct.
A workplace lawyer can further shed light on this area of the law when it comes to the dismissal of employment due to social media posts. And they can help assess your matter to determine if the social media post is enough to dismiss the employee.
An employee’s political opinions are of course protected under the Fair Work Act 2009. This means that an employer cannot take adverse action against employees for holding particular political opinions.
However, employers can impose reasonable requirements on employees’ social media use, to protect the company’s interests in maintaining a positive reputation.
If you need legal advice about what employees can and can’t do when it comes to social media, you should get workplace legal advice.
Employees who conduct themselves in a manner that exposes opinions on social media, in opposition to the views of their workplace, should consider the duties they are obligated to uphold in their employment relationship, regardless of entitlement to hold any such views.
For employers, it is important to be clear on duties and obligations an employee is expected to uphold throughout the course of their employment. You must also be clear about conduct that may give rise to disciplinary action.
This is achieved through clear and consistent contractual terms, policies and training, covering expectations. A workplace lawyer will be able to provide advice on these documents and expectations, but they should cover:
Additional messaging around company values, public policies and positions on significant matters, communicated clearly and consistently, further aids the removal of doubt as to its meaning and enforcement before the courts.
This messaging should provide employees with sufficient information to determine whether their social media post may jeopardise their job.
We provide legal advice to business and individuals across Australia, no matter which State or Territory you are located. Our easy-to-access, online legal services mean that you can talk to our lawyers wherever you are, at a time that suits you.
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