The boundaries between home and work are often blurred – particularly with the growth of the internet where our lives are increasingly public. A whole generation is entering the workplace who have grown up with social media, sharing their lives online, whilst many, perhaps less savvy workers might be using the various platforms to communicate and share opinions, without considering the consequences.
But where do you, as an employer stand when it comes to the use of your team’s social media when they aren’t at work? You can stipulate rules in your company policy handbooks around the use whilst on the job, but what are the rules when your team are tweeting or sharing updates on Facebook that could negatively impact your business?
The lines are blurred. When does behaviour that happens out of hours affect the reputation of our workplace and our commitment to the job?
Unfair dismissal historically
In the legal sphere, a regular quoted case was that of unfair dismissal, the Rose v Telstra Corporation Limited (1998) AIRC 1592 case. The case concerned an employee who was involved in a fight with a colleague while off-duty on a work trip funded by his employer. A number of considerations, including the location (private) and the fact the individual was not ‘on call’ at the time, led to the finding that the employee was unfairly dismissed. It was deemed that his actions were not likely to cause serious damage to his employment relationship.
It was stated 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, it was handed down in 1998, prior to the explosion of social media, so unsurprisingly, the law has had to evolve rapidly. Now that our personal lives can be broadcast instantly, the line between the work and personal lives of employees is less clear than ever.
Social media use
A recent headline-making case was the judgment handed down from the High Court, Comcare v Banerji  HCA 23, which involved a public service employee who made critical comments relating to the government on Twitter, outside of work hours, anonymously, which led to her dismissal.
The reason this case ended up in court was because 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 specifically state that any 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.
But what does this mean for privately owned businesses?
The recent case made the situation pretty clear for those in the public sector, but there have been some unfair dismissal cases in the private sector before the Fair Work Commission that have highlighted the challenges of these scenarios.
One such case is O’Keefe v Williams Muir’s Pty Ltd  FWA 5311.
Mr O’Keefe went on an expletive-filled rant about his employer and the fact that he had not been paid, and made comments that could be construed as threats to a colleague.
The workplace had a clear Employee Handbook and it was judged that O’Keefe could not argue that he was unaware 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 it was acknowledged he was “frustrated by his unresolved pay issues”, 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 state that a company cannot dismiss every employee for sharing social media posts that could be construed as derogatory of the employee’s workplace and also cited the Fair Work Act  which stated the dismissal cannot be “harsh, unjust or unreasonable”.
The High Court considered that in some cases, a reprimand was adequate punishment, taking into consideration the “level of the employee involved and the nature of the conduct in issue” before immediately dismissal.
Another recent case, Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring  FWC 5622 (16 August 2019) involved an employee posting a long and negative Facebook post about the new owner who had recently taken over the business and was subsequently dismissed. This was deemed too harsh due to factors including the employee’s length of service, lack of previous performance issues and a medical condition.
What these examples show is that the law is still evolving when it comes to social media practices and the workplace and that there is no ‘one size fits all’ response. Every case is nuanced, and varied, depending on the individual employee and the specifics of the incident.
What employers can do is develop a clear Social Media Policy. Even if you’re a micro-business that isn’t client-facing, you are still at risk of being associated with a staff member, by virtue of their job title, word of mouth, or online profile.
The policy should set out what is expected of employees in relation 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.
Whilst common sense should always prevail, one can never prepare for the unexpected. One thing about social media is that it sticks around – just think of those people in the public eye who have been called out for a tweet they sent eight years ago, or a Facebook photo of them at a dress-up party a decade back.
If a team member uses social media in a way that you feel is inappropriate or could affect your reputation, it’s definitely worth addressing – it may be that they’d had a bad day and didn’t understand the consequences of their actions.
Proceed with caution when considering dismissing an employee for breaches of the policy. 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.
Kayte Lewis is the Director of Voice Lawyers & Consultants and has been helping individuals put their strongest voice forward for over 25+ years. With a background in performing arts, business, and law, Kayte works with executives and managers from a wide range of industry sectors. Kayte navigates and challenges the courtroom with confidence, and is committed to education and training for lawyers and business owners and to the improvement of communication as a means of resolving disputes.