In an increasingly connected world, social media blunders committed by employees can have a real impact on the employment relationship. There are situations where an employee’s conduct on social media could constitute a breach of the employment contract and warrant dismissal. The breach must be a breach of the express or implied terms of the employment contract, and must be serious enough to affect the employment relationship in a way that the employer cannot reasonably be expected to have confidence in their employee.
NB: Australian jurisdiction
Connection to work
Relevant to the issue of social media misuse by employees is the issue of out of hours conduct. The test for when an employee’s out of hours conduct is so unacceptable it could give a valid reason for dismissal is set out by Ross VP in Rose v Telstra Corporation Ltd (U No. 20564 of 1998).
The conduct must be, when viewed objectively:
- likely to cause serious damage to the relationship between the employer and employee; or
- the conduct damages the employer’s interests; or
- the conduct is incompatible with the employee’s duty as an employee.
Even where the circumstances fit within the test in Rose, employers must remember the wording of s 385 of the Fair Work Act 2009 (Cth), which states:
A person has been unfairly dismissed if the Fair Work Commission (FWC) is satisfied that the dismissal was harsh, unjust or unreasonable.
In many of the cases I looked into, the FWC determined that the employer had a valid reason for dismissal, but due to a defect in procedure, and/or the harshness of the dismissal all things considered, the dismissal was still considered an unfair dismissal.
Cases where employee made outrageous, hurtful or inappropriate comments or posts on social media but dismissal was still unfair:
||Why dismissal was unfair
|Somogyi v LED Technologies  FWC 1966
|Procedurally unfair: No reasons given for dismissal/ no opportunity to respond
|Linfox Australia Pty Ltd v Stutsel  FWAFB 7097
|Dismissal was harsh: previous good employment record and employee’s lack of awareness on social media privacy settings
|Singh v Aerocare Flight Support Pty Ltd  FWC 6186
||No valid reason: employee gave an acceptable explanation of the posts, and other posts did not breach SM policy
|Remmert v Broken Hill Operations Pty Ltd  FWC 6036
|Procedurally unfair: other matters influenced the decision maker and were not made known to the employee
|Renton v Bendigo Health Care Group  FWC 9089
|Dismissal was harsh: disproportionate to the conduct
|Fitzgerald v Dianna Smith T/A Escape Hair Design  FWAFB 1422
|No valid reason, no procedural fairness. However, harshness not a consideration as the employee was not able to work as she was incapacitated (psychological harm not related to work). Compensation awarded was therefore limited.
Cases where dismissal was not unfair:
||Why dismissal was not unfair
|O’Keefe v William Muir Pty Ltd t/as The Good Guys  FWA 5311
|The words were a clear threat to other employees constituting repudiation
|Dover- Ray v Real Insurance Pty Ltd  FWA 8544
|Employee refused to follow reasonable direction to remove social media posts
After-hours conduct cases
In most of the after-hours conduct cases, dismissal was found to be unfair, even if there was a valid reason for dismissal:
- Rose v Telstra Corporation Limited (U No. 20564 of 1998
- Clarkin v Bechtel Construction (Australia) Pty Ltd  FWC 1871
- Keenan v Leighton Boral Amey NSW Pty Ltd  FWC 3156
- Deeth v Milly Hill Pty Ltd  FWC 6422
The only case in relation to out of work conduct where dismissal was not unfair was Kathuria v The Commonwealth  FWC 8553, where largely the employee demonstrated an unwillingness to comply with lawful and reasonable directions.
Employers must be careful when terminating an employee for misconduct on social media. No matter how outrageous, offensive or potentially damaging to the employer or fellow employees an employee’s social media post may be, an employer must consider:
- Whether they have a SM policy (Linfox)
- Whether the SM policy was provided to the employee, and its purpose and application explained (Remmert)
- Whether the posts could be linked back to the employer and have an adverse affect (Fitzgerald v Escape Hair Design)
- Whether the employee was afforded procedural fairness (Singh v Aerocare, Somogyi)
- Whether fellow employees were adversely affected (Renton v Bendigo Health Care, Keenan); and
- Whether other options to discipline were open to the employer.
Each case turns upon its facts and there is no hard and fast rule on when it is OK to dismiss an employee for a social media post. It is clear, however, that if an employer avoids being hasty, ensures that they have a clear social media policy in place, and the employer follows the principles of procedural fairness they are halfway there to defending an unfair dismissal claim should one arise.
All material is provided for general information and educative purposes. Appropriate legal advice should be obtained for your particular situation. None of the content reflect the views of, or are endorsed by affiliates, employers, colleagues, or associates.
This article is entirely my own opinion, and the first I’ve ever published. If you have comments or critiques, please comment below or email me.