An employee posts something on social media. Another employee takes a screenshot and sends it to management. A customer complains. A supplier raises concerns. Suddenly, what appeared to be a personal post has become a workplace issue.
One of the most common questions employers ask in this situation is whether they can dismiss the employee for what they posted online.
The answer depends on more than just the content of the post. The Fair Work Commission will generally consider factors such as the connection between the conduct and the workplace, the impact on the business, whether workplace policies have been breached, and whether the employer followed a fair process before taking disciplinary action.
In this article, we explain when a social media post may justify disciplinary action or dismissal, the mistakes employers commonly make when responding to online conduct, and the factors that should be considered before making any employment decisions.
Unsure whether a social media post justifies disciplinary action or dismissal? Our Brisbane employment lawyers advise employers across Australia on workplace investigations, misconduct issues and unfair dismissal risks. Contact us for practical legal advice before making a decision.
The Question Employers Usually Ask
An employee posts something online. A screenshot finds its way into the workplace. A customer complains. Another employee says they feel uncomfortable working with the person.
At that point, most employers ask the same question:
“Can I dismiss them for this?”
It’s a reasonable question, but it often focuses on the wrong issue.
In our experience, employers can become so focused on the content of the post that they overlook the factors that actually determine whether disciplinary action will stand up to scrutiny.
The fact that a post is offensive, controversial or unpopular does not automatically mean dismissal is justified. Equally, the fact that it was posted outside work hours or on a personal account does not automatically protect an employee from workplace consequences.
The real question is whether the conduct has become a workplace issue.
When Does A Social Media Post Become Your Business's Problem?
One of the biggest changes we’ve seen over the past decade is the disappearance of the clear line between work and personal life.
Employees no longer leave their workplace identity behind when they leave the office. Colleagues connect on social media. Customers follow staff online. LinkedIn profiles identify employers. Industry networks overlap with personal networks.
As a result, a post made on a Saturday night can create genuine workplace issues by Monday morning.
That doesn’t mean employers can regulate everything employees do outside work. However, where online conduct starts affecting workplace relationships, company culture, customer confidence or business reputation, it can become relevant to the employment relationship.
We’ve acted for employers dealing with situations where a single post triggered internal complaints, damaged team morale or led customers to question whether the business endorsed the views being expressed. In those circumstances, the issue is often much bigger than the post itself.
Case Law Spotlight: Corry v Australian Council of Trade Unions [2022] FWC 288
An ACTU employee was dismissed after making a series of offensive posts on his personal Facebook account and workplace messaging platform. The posts included comments supporting anti-vaccination protests, applauding aggression towards police, and content considered discriminatory towards various groups. The employee argued that the posts were made outside work hours and on a personal account. However, the Fair Work Commission found the conduct was inconsistent with the ACTU’s values, policies and the employee’s obligations under his employment contract. The dismissal was upheld.
Key takeaway for employers: A social media post does not need to be made during work hours to justify dismissal. What matters is whether the conduct creates a sufficient connection to the workplace and causes harm to the employer’s interests, reputation or employment relationship.
Why The Context Matters More Than The Post
Employers are often looking for a simple rule. And.. there isn’t just one catch-all rule!
A social media post cannot be assessed in isolation. The surrounding circumstances usually matter just as much as the content itself.
For example, an employee in a highly visible leadership role may create greater reputational risk than an employee whose role has little public profile. A comment seen by hundreds of customers may have a different impact to a comment shared with a handful of personal friends. A post that triggers complaints from colleagues may create workplace health and safety concerns that did not exist before the content was published.
This is why two seemingly similar social media posts can result in very different outcomes.
The question is not simply what was said. The question is what effect the conduct had, or was reasonably capable of having, on the workplace and the business.
The Mistake That Creates The Most Risk For Employers
Ironically, many unfair dismissal claims arise not because the employer lacked a valid concern, but because they rushed the process.
When a social media controversy emerges, there can be pressure to act quickly. Senior management may be worried about reputational damage. Staff may be demanding action. Customers may be making complaints.
However, acting quickly is not the same as acting fairly. Before making disciplinary decisions, employers should properly investigate what occurred, gather evidence, consider the employee’s explanation and assess whether workplace policies have actually been breached.
We’ve seen situations where employers were so focused on responding to public pressure that they overlooked procedural fairness. That decision can become far more difficult to defend later, even where concerns about the conduct itself were legitimate.
Case Law Spotlight: Somogyi v LED Technologies Pty Ltd [2017] FWC 1966
Mr Somogyi was summarily dismissed after publishing a crude Facebook post that his employer believed was directed at a workplace colleague. While the Fair Work Commission accepted that the post was inappropriate, the dismissal was ultimately found to be unfair. The employer had failed to properly investigate the circumstances, could not establish that the employee was aware of its social media policy, and did not provide the employee with an opportunity to respond before termination. Compensation was awarded.
Key takeaway for employers: Even where social media conduct appears inappropriate, employers still need to follow a fair process. A poorly handled investigation or lack of procedural fairness can undermine what may otherwise have been a legitimate disciplinary decision.
Before Deciding Whether Dismissal Is Appropriate
Rather than asking whether the employee can be dismissed, employers should first assess whether they understand the full picture.
Questions worth considering include:
- Has the employee’s conduct affected workplace relationships?
- Has the business suffered reputational damage?
- Does the conduct conflict with workplace policies or contractual obligations?
- Can the employee be identified as working for the business?
- Has the same standard been applied consistently to other employees?
- Have you given the employee an opportunity to respond?
The answers to these questions often determine whether disciplinary action is reasonable and defensible.
A Practical Perspective For Employers
Most social media issues are not really about social media. They are about risk.
The post itself is usually just the event that brings an underlying workplace issue to the surface. The real challenge for employers is balancing reputational concerns, workplace culture, employee rights and legal obligations while making decisions that are fair and commercially sensible.
That is why there is rarely a one-size-fits-all answer. The same post may justify dismissal in one workplace, lead to a warning in another, and require no disciplinary action at all in different circumstances.
The key is not reacting to the post. The key is understanding the impact it has had on your business and following a process that allows you to make an informed decision.
How Employers Can Protect Themselves
Employers should implement clear and enforceable:
employment contracts
social media policies
codes of conduct
training programs
These documents should clearly explain:
expectations around social media use;
examples of unacceptable online conduct;
what constitutes serious misconduct;
disciplinary processes;
the company’s values and public positions.
Regularly updating policies and ensuring employees understand them is crucial, particularly given the rapid changes in the online environment.
The outcome of a social media misconduct matter often depends as much on the employer’s response as it does on the post itself. If you’re unsure how to proceed, our Brisbane employment lawyers can provide tailored advice on your options and help you navigate the process with confidence.
About the Author
Farrah Motley
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