As the boundaries between corporate life and private life blur, comments employees make on social media can get them sacked, and the law seem to back up the employers. Nigel Phair highlights some recent cases before the Fair Work Commission and the courts.
Australians love social media. As of August 2017, some 17 million of us use Facebook at least monthly, with 12 million logging in every day. Instagram had 5 million monthly active users, LinkedIn had 4.2 million, and Twitter had 3 million.
Many of us also post details about our employment. That’s obviously the case with LinkedIn, less so with the other channels. But as these four cases illustrate, the personal nature of social media hasn’t been a barrier to employment termination.
So what are employees’ obligations?
Employees have a number of duties to their workplace, many of which are implied at law, such as the duty to obey lawful and reasonable directions. At face value this makes sense, but what does “reasonable” mean? And what about an employee’s implied right to freedom of expression, particularly via social media?
The Fair Work Commission, as Australia’s national workplace relations tribunal, has been adjudicating on several of these matters.
Can insults on social media be workplace bullying?
The Commission’s anti-bullying jurisdiction, which commenced on 1 January 2014, allows an individual who believes that they have been bullied at work to apply for an order to stop the bullying.
In Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others  FWCFB 9227, three employees of DP World Melbourne Limited (DP World) had made an application to the Fair Work Commission for an order to stop alleged bullying by some of their colleagues.
Central to the case were various Facebook posts made by employees of DP World who were members of the MUA, and by MUA officials, making various “unreasonable and insulting allegations” and comparisons of two of the applicants.
DP World and the MUA sought to have those posts struck out from the application, claiming that posting on social media didn’t happen “at work” in terms of the phrase “bullied at work” defined in s.789FD of the Fair Work Act 2009 (Cth).
The matter was referred to the Full Bench of the Fair Work Commission for a ruling.
The use of social media to engage in bullying behaviour created particular challenges for the Commission. They found conceptually there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying behaviour. But how does the definition of “bullied at work” apply to such behaviour?
Where the bullying behaviour consists of a series of Facebook posts, there is no requirement for the person who made the posts (the alleged bully) to be “at work” at the time the posts were made, but what about the worker to whom they are directed?
The Full Bench declined to strike out those claims. “The application of the meaning of ‘at work’ in a particular case will depend on all the circumstances and it is appropriate that the jurisprudence develop on a case by case basis,” they ruled.
Whether social media posts can count as workplace bullying is therefore still an open question.
Threats are threats, even when they’re on Facebook
In O’Keefe v The Good Guys  FWA 5311, The Applicant, Damian O’Keefe, was dismissed from his employment with the The Good Guys for serious misconduct after four years of service.
In mid 2010, O’Keefe noticed that outstanding payments due to him remained unpaid. He then wrote, while absent from work, on his Facebook page:
“f…ing work still haven’t managed to f…ing pay me correctly. C…s are going down tomorrow.”
O’Keefe told the Commission his Facebook page was set to the maximum privacy setting, and only his select group of friends (70 people) could see what he had written. He said that nowhere on his webpage is The Good Guys mentioned.
However, under cross-examination, he stated that there were probably 11 co-workers in his select group of friends who, arguably, would have seen the entry.
The following day The Good Guys claimed that they thought O’Keefe had written was his “letter of resignation”, and some days later they’d followed up with a letter of termination, paying him three weeks notice plus annual leave payments.
O’Keefe made a complaint to the Fair Work Ombudsman. As a result, the Fair Work Inspector noted that O’Keefe hadn’t contravened any Commonwealth workplace laws or the relevant industrial instrument.
However they found, prima facie, that threatening another work employee is a serious issue, and one which would not be tolerated in any workplace. The manner in which the threat was made and the words used provided sufficient reason for the O’Keefe to be sacked for serious misconduct.
Twitter pseudonyms won’t protect public servants who vent
In Banerji v Bowles  FCCA 1052, the Federal Circuit Court refused to make orders to prevent the dismissal of a public servant who had anonymously made a number of critical comments on Twitter about the Department of Immigration and Citizenship (DIAC), and, more broadly, the government and its policies.
The Applicant, Michaela Banerji, was a “public affairs officer” in the Department of Immigration and Citizenship (DIAC) when a complaint was made about her inappropriate use of social media, as well and her being employed in outside employment without permission.
A departmental investigation found that she had breached the department’s Guidelines on Use of Social Media by DIAC Employees and the APS Code of Conduct. A recommendation was made to terminate Banerji’s employment, and she was invited to comment on that recommendation, associated declaratory orders, and an interlocutory injunction.
Banerji argued that the department had planned on terminating her employment because of an investigation that was triggered by earlier bullying complaints that she made about her manager. She also submitted that any disciplinary action imposed for these tweets would be “unconscionable” and amount to a breach of the “constitutionally guaranteed freedom of expression”.
In rejecting Ms Banerji’s claim, the Court found there is no unfettered right (or freedom) of political expression/communication. This ruling highlights there is no unfettered freedom of political expression for public sector workers across Australia and that anonymous venting on social media about the Government’s policies is a breach of the APS Code of Conduct and departmental policies on social media use.
Employees’ opinions can damage their employer’s reputation
In Little v Credit Corp  FWC 9642, the Fair Work Commission held that an employee’s opinions can become a disciplinary matter if they can damage the employer’s reputation or viability, or destroy the employer’s confidence in them.
The applicant, Cameron Little, had posted disparaging comments on the Facebook page of a stakeholder organisation which had commercial dealings with the Credit Corp. This was not the first time Little’s online activities had been noticed at work. He had been warned previously for making comments during work time on another website, in breach of the company’s policies.
Little did not deny the allegations, or that the conduct breached his employer’s code of conduct. His position was, in essence, that it was his time, his thoughts, and he hadn’t identified himself on his profile as an employee of Credit Corp, so it really wasn’t any of his employer’s business.
The Commission ruled, however, that there was a valid reason for sacking Little. Deputy President Sams pointed out:
“The applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability… The fact the applicant made both Facebook comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee.”
Lessons for Employers
Having a clear and easily accessible social media policy which reflects the expectations of the organisation is essential. The purpose of this policy is to protect the brand and reputation of the business.
The policy needs to get the balance right of what is “at work”, and set out any likely disciplinary action, including termination.
Employers also need to consider who should be subject to this policy, and consider including contractors or volunteers.
Employees should receive social media training upon induction and at regular intervals, and include such issues as different kinds of social media platforms, public v private comments, and privacy settings.
When undertaking an investigation into an alleged breach of a social media policy, an employer should ensure procedural fairness. Consider the reach of the comments, whether individuals or the organisation are identifiable, and what damage may have occurred.