The explosion of social media use over the years presents many challenges to the employment relationship. The use of social media has the potential to blur the boundaries between work and non-work life which has led to many employers being perplexed in situations where an employee has posted something in their private capacity on social media, which has (or is likely to have) a negative impact, and which could be connected to the employer.
The question of whether a dismissal is justified depends on both the nature of the conduct and the subsequent actions of the employer. In this article, we will be reviewing two legal decisions that deal with the dismissal of employees for conduct involving social media.
In Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186, Mr Singh was a baggage handler employed as a casual employee on a regular and systematic basis by Aerocare Flight Support, an aviation ground handling and services company. Mr Singh held an airport security identification card and was authorised to work within restricted security sensitive areas of Perth Airport. Mr Singh was dismissed by his employer after he had authored Facebook posts allegedly supporting ISIS and Islamic extremism including sharing a post from an Australian Islamic Group and included his own commentary, being the words “We all support ISIS”. Aerocare was then informed about the posts by two other workers who were friends with Mr Singh on Facebook. As a result, Aerocare undertook an investigation and met with Mr Singh to discuss with him that the Facebook posts were contrary to their social media policy and given the nature of his job, represented a security risk. Mr Singh proclaimed that the posts had been sarcastic, he was opposed to ISIS and extremism.
In its decision, the Fair Work Commission accepted that the ISIS post in particular did breach the social media policy and Mr Singh had participated in relevant training in relation to the policy. However, the Commission found that the dismissal was unjust, harsh and unreasonable because Aerocare:
- failed to thoroughly review Mr Singh’s complete Facebook newsfeed which would have led to the conclusion that he did not truly support ISIS;
- spent only 10 minutes deliberately his response to the allegations put to him, suggesting that the decision-makers did not properly consider his responses and the dismissal was premeditated; and
- did not consider any other alternative form of disciplinary action other than dismissal.
Notably, in circumstances where an employee’s alleged misconduct on social media occurrs outside of work, the Commission has tended to apply the following principles enunciated in Rose v Telstra Corporation Limited:
It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
- the conduct must be such that, viewed objectively, it is 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.
Another recent decision considering this issue is Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174. In this decision, the Commission upheld the dismissal of an employee who sent a pornographic video to colleagues outside of work hours despite no formal complaint being lodged by the employees who received the video. Over the years, Sydney International had taken steps to encourage more women to work in the stevedoring industry and as a result, introduced workplace policies addressing bullying, harassment and misconduct of a sexualised nature. Mr Colwell had received training in relation to these policies, however Sydney International did not have a social media policy in place.
The decision to dismiss the employee arose when Mr Colwell had been drinking on his day off and sent a pornographic video via Facebook Messenger to his Facebook friends which included 16 male and 3 female work colleagues. One particular female responded to him with “Are you serious? Mate don’t send me that shit”. The worker posted an apology on his Facebook page the following day.
Despite not receiving any formal complaint from the recipients of the message, the message came to the attention of Sydney International who subsequently conducted an investigation and terminated Mr Colwell’s employment due to a finding of serious and wilful misconduct including breach of company policy.
In support of his unfair dismissal claim, Mr Colwell argued that there was no reason to dismiss him because there was an insufficient connection between the conduct and his employment. In particular, the employee relied on the fact that the video was sent outside of work hours and did not involve any work-related IT equipment. Furthermore, he argued that communications between friends was not a matter for his employer, any communication which some friends may find offensive are matters for resolution between those friends and not a matter that the employer may regulate.
In its decision the Commission disagreed with Mr Colwell, stating that “if an employee engages in conduct outside of the physical workplace towards another employee that materially affects or has the potential to materially affect a person’s employment that is a matter which legitimately may attract the employer’s attention and intervention”. In this regard, the Commission found that Mr Colwell was Facebook friends with colleagues only because of their work relationship and therefore there was a relevant nexus or connection to his employment. Interestingly, the Commission also noted that it was not satisfied that the conduct constituted a breach of the policies as the policies did not include out of hours conduct or conduct via social media.
Relevantly, in relation to the fact no actual complaint was made by any of the recipients of the video, the Commission also took the opportunity to state the following:
“it is the situation that employers may fall into the error of thinking that a formal complaint or allegation is required before making an enquiry into an issue of conduct such as bullying or harassment – but this is not the case and a failure to act may present risks that might otherwise have been avoided.”
Lesson for Employers
As is clear from the competing outcomes in the cases discussed in this article, and the absence of any legislation dealing with this issue within our employment relations system, cases involving the dismissal of employees on the basis of social media misuse are varied and the law is extremely grey in this area and has become even greyer. It is clear, however, whether conduct on social media is justifiable for termination remains an area of contention and will depend on the facts and circumstances of each case and the extent to which the employer is infringing upon the privacy of its employees when taking action over unsavoury social media conduct and whether there is a sufficient nexus between the conduct and the employment relationship.
It is therefore critical employers have a robust social media policy that covers conduct that occurs outside of the workplace and outside of working hours or that may impact upon other persons connected to the workplace. It is also important to have detailed workplace policies that deal with harassment, bullying and discrimination. Importantly, workplace policies should provide the employer flexibility for handling matters and if an investigation is undertaken ensure it is thorough and always give the employee an adequate opportunity to respond to any allegation before making a final decision.
Other strategies to manage the risk of social media misuse includes providing staff training and implementing software to monitor or limit excessive or objectionable use by employees during work hours. If you have concerns about social media use in your workplace, or wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us for specialist advice or assistance.
This alert is not intended to constitute, and should not be treated as, legal advice.