The release and changing popularity of social media platforms and smartphone apps which enable social interaction are incredibly rapid. There is no end to the means by which employees can communicate with each other and with the outside world… which means there is no end to the online platforms on which employees can criticise their employer!
There have been some interesting legal cases which have recently considered disciplinary action taken by an employer against an employee, for disparaging activity on social media.
There are three issues which commonly arise:
1. The extent to which the employee’s criticism was “private” (outside the reach of the employer’s policies and discipline),
2. Whether the social media post was likely to damage the employer’s reputation, and
3. Whether the employee was simply exercising their freedom of speech.
1. ‘Private’ or out-of-hours posts
Generally, following the principles in Rose v Telstra Corporation Limited  AIRC 1592, the courts will uphold disciplinary action in relation to private and ‘off-duty’ conduct involving social media activity where the conduct either:
- is likely to cause serious damage to the relationship between employer and employee, when viewed objectively; or
- damages the employer’s interests; or
- is incompatible with the employee’s duty as an employee.
In Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design  FWA 7358, the Facebook post in question was made by an employee after receiving a smaller Christmas bonus than she expected and being paid part of her holiday pay by cheque rather than cash. Although the page was set to private, so the comment was only accessible to her Facebook “friends”, a third party told the employer of its content. Commissioner Bissett of the FWC held that a Facebook post, even if made outside working hours and intended to be a private matter, could fall within the Rose v Telstra principle (above) if the comment was made on a website accessible to a potentially “uncontrollable” number of people.
2. Damage to reputation
The extent to which the employer’s reputation was really at risk of damage will depend partly on how “public” the post was – and therefore, how many people likely read the post.
In Vosper v Solibrooke Pty Ltd  FWC 1168, an employee whose employment was terminated after she complained to a relative on Facebook about her employment situation was unfairly dismissed. The FWC found that her remarks did not harm the business, and an employee has a right to complain about their employment rights and their treatment at work.
An employee ‘liking’ complaints against her employer, in Ms Palak Rani v Limitless Ventures Toscas Pty Ltd T/A Toscanis Mackay  FWC 6429, was not an intention to, nor likely to, damage the company’s reputation, and therefore not valid grounds for dismissal.
In Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota  FWC 644, a private Facebook message that was critical of a manager (subsequently only discovered by the manager by hacking into an account) did not breach the company’s Social Media Policy. The FWC found that the private message was akin to a private conversation (such as an email communication) that would not normally be accessed by others on Facebook.
3. Free speech of public sector employees
Employees in the state and federal public sector are subject to certain restrictions on making political statements and criticising governmental actions. For example, section 13 of the Public Service Act 1999 (Cth) states that criticism of the government or its departments must not bring the Australian Public Sector into disrepute or lead the public to suspect that the employee is unable to perform their duties impartially.
An employee who criticised the government’s refugee policy on Twitter, in Banerji v Bowles  FCCA 1052. Even though she did not reveal her name or her job to her readers, she was found not to have an “unfettered implied right (or freedom) of political expression” and therefore a stay in her dismissal was not warranted.
In Starr v Department of Human Services  FWC 1460 it was held that, while the social media activities of public servants comes under greater scrutiny due to the provisions of the Public Service Act 1999 (Cth), this does not inhibit their constitutional implied right to free speech. In particular, references to the APS being “apolitical” does not extend to a requirement that all APS employees must be apolitical outside of work hours, in particular employees who perform routine administrative tasks.
Chief of the Defence Force v Gaynor  FCAFC 41 considered “extreme” comments about Islam and transgender people. These comments were found to be an unacceptable breach of the Code of Conduct, rather than a legitimate exercise of free speech.
Check your policies!
These days, it is all too easy for employees to criticise their employer on social media, particularly when many of us carry Facebook and other apps on our smartphones with us, 24/7.
Take these cases as a reminder to check your organisation’s policies about social media and use of IT equipment and software. In many of these cases, the employer’s disciplinary decision was challenged in court because the employer’s policy was vague or non-existent, or the employee had not been informed of it.
Check your social media policy and ensure it includes the 12 essential ingredients as outlined in a recent post by my colleague, Tom Henry.
About Rose Bryant-Smith
Rose Bryant-Smith is the co-founder and director of Worklogic. She is passionate about building ethical, productive and innovative workplaces. Rose leads projects about organisational ethics, risk management, corporate governance and organisational performance.
Worklogic works with employers to resolve workplace complaints and create a positive culture at work.
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