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The Blurring Line Between Work and Personal Life

The line between work and personal life has become increasingly blurred, with social media playing a significant role. Courts are now focusing less on whether the conduct occurred outside of working hours and more on the gravity and context of the posts or comments. As legal experts will attest, contractual repudiation is also a relevant factor. If an employee’s conduct indicates a repudiation of their duties or obligations to their employer, it may constitute a serious breach of contract.

Assessing whether the Dismissal is valid: Key Considerations

When determining whether a social media post is a valid reason for dismissal, courts and legal professionals apply a comprehensive assessment. This evaluation considers several key factors, including:

1. Employment Contracts, Policies, and Training
   The existence and clarity of employment contracts, social media policies, and relevant training provided to employees play a crucial role in establishing expectations and guidelines for appropriate conduct.
2. Company Values and Public Positions
   The values and public positions of the company, as well as any implied duty of fidelity owed by employees, are considered to determine if the social media posts are contrary to these principles.
3. Potential Risks and Harm
   The potential risks posed by the social media posts to the employer’s reputation, viability, profitability, or the health and safety of others are carefully evaluated.
4. Procedural Fairness
   Courts assess whether the employer followed fair procedures during the disciplinary process, such as providing the employee with detailed allegations, applicable policies, and an opportunity to respond.

Protecting Employers' Legitimate Business Interests

Social media posts by employees have the potential to affect an employer’s legitimate business interests in many ways, including:

1. Reputational Damage
   Derogatory remarks about the business, its clients, or confidential information shared online can severely damage the company’s reputation.
2. Harassment and Discrimination
   Employees using social media to harass, bully, or discriminate against colleagues can expose the employer to potential legal liabilities.
3. Productivity and Efficiency
   Excessive personal social media usage during working hours can negatively impact employee productivity and efficiency.

To mitigate these risks, employers must establish clear social media policies that define acceptable and unacceptable behaviour, prohibit the disclosure of confidential information, and outline the potential consequences of policy violations, including disciplinary action or dismissal.

How Employers Can Monitor Social Media Activity

Employers are increasingly turning to social media as a tool for vetting potential candidates and monitoring the online activities of current employees. Here are some ways in which employers may monitor social media:

1. Background Checks
   Many employers conduct social media background checks during the hiring process, scrutinising candidates’ online presence for any red flags or concerning behaviour.
2. Reputation Monitoring
   Companies may employ tools or services to monitor the social media activities of their employees, aiming to identify potential reputational risks or violations of company policies.
3. Employee Reporting
   In some cases, employees themselves may report concerning social media posts or activities of their colleagues to human resources or management.
4. Public Visibility
   Even if an employer does not actively monitor social media, posts or content that gain public visibility or go viral can attract unwanted attention and scrutiny.

Balancing Employee Rights and Employer Responsibilities

While employers have a legitimate interest in protecting their business interests, they must also respect employees’ rights to hold and express personal opinions and beliefs. The Fair Work Act 2009 protects employees from adverse action based on their political opinions, but employers can impose reasonable requirements on social media use to safeguard their reputation.

Employees should be mindful that their right to hold and express views does not grant them an unqualified right to publicly espouse opinions that are contrary to their employer’s interests and values. It is essential for employees to understand the duties and obligations they are expected to uphold throughout their employment, as outlined in their employment contracts and company policies.

Recommendations for Educators and Support Staff in Education

For educators and support staff in the education sector, navigating the legal landscape surrounding social media usage can be particularly challenging. The eSafety Commissioner provides valuable guidance on this matter, encouraging staff to follow procedures, codes of conduct, and employment contracts, and to seek advice from school leadership or union representatives if unsure about the appropriateness of online conduct.

The eSafety Commissioner’s Fact Sheet, “eSafety Toolkit for Schools: Creating Safer Online Environments,” offers practical tips for professional, personal, and classroom social media use. It emphasises the importance of avoiding “trash talking” employers, students, or colleagues on social media platforms, as this breaches the duty of fidelity to the employer.

Additionally, the law is clear that inappropriate conduct on social media towards work colleagues or students can constitute workplace bullying or harassment, exposing the employer to legal liability and breaching the duty of care owed to students.

Recent Court Decisions: Insights and Implications

Several recent court decisions have shed light on the legal implications of social media posts and their potential impact on employment relationships. These cases have demonstrated that the tone, context, and potential reach of social media posts are more significant than the specific language used or the privacy settings of the account.

In the case of Corry v Australian Council of Trade Unions [2022], the Fair Work Commission upheld the summary dismissal of an employee who had posted highly offensive material on their personal Facebook account.

The posts opposed vaccine mandates, praised police aggression, and discriminated against racial and transgender groups. The ACTU argued these views conflicted with their values and policies, despite no workplace sharing.

The posts were deemed to be in breach of the employer’s social media policy and constituted serious misconduct, despite the employee’s claim that the posts were not offensive or discriminatory.

Similarly, in Waters v Mt Arthur Coal (2018), the Fair Work Commission found that an employer fairly dismissed an employee for a Facebook post made outside work hours on a personal account, as the post related directly to work matters and violated an existing workplace policy.

The Facebook Post addressed safety concerns about Christmas and Boxing Day shifts at Mt Arthur Coal Pty Ltd’s mine. While it didn’t disrupt operations, it had the potential to do so.  Mt Arthur claimed a valid reason for dismissing Mr Waters, citing breaches of workplace policies he was trained in. Mr Waters argued his dismissal was unfair as the conduct occurred outside work hours.

The Commission found Mt Arthur had a valid reason for dismissal and it wasn’t ‘harsh, unjust or unreasonable’ under section 387 of the FW Act. A key factor was that the Facebook Post directly related to work matters and violated an existing workplace policy prohibiting such conduct.

These decisions highlight the importance of employers having comprehensive social media policies that clearly outline expectations for employee conduct, both during and outside of working hours, and on personal and professional accounts.

Conclusion: Social Media Caution in the Workplace

In the digital age, it is important for both employers and employees to navigate the social media landscape with caution and awareness. Employers must establish clear policies and guidelines, while employees must understand their responsibilities and the potential consequences of their online activities.

By fostering open communication, providing comprehensive training, and promoting a culture of respect and professionalism, businesses can mitigate the risks associated with social media usage and create a harmonious and productive workplace environment.

Ultimately, the intersection of social media and employment requires a delicate balance between protecting legitimate business interests and respecting individual rights. By seeking legal advice and staying informed about the latest developments in this area, both employers and employees can make informed decisions and safeguard their respective interests