Social media and its connection to employment

The Fair Work Commission recently upheld an employer’s summary dismissal of its employee because of posts he made on Facebook.¹  The Commission stated that on an objective level, the Facebook posts displayed “vituperative criticism of Aboriginal people, women and persons in the media”.

On 15 January 2021, the employer received a complaint from a member of the public, that the employee had posted offensive material on Facebook. 

The email from the member of the public advised that the posts were extremely offensive such that they had severely damaged the complainant’s confidence and trust in the employer as an organisation because it had a person employed who would publish such material.

Upon investigation by the employer, it was verified that the employee’s Facebook account was open to the public and that the employee had identified his employer by name in the Facebook page. 

The Facebook account was found to contain various posts of a racist or sexist nature.  Such posts included links to newspaper articles.  Examples of the “vituperative criticism” were these:

F**k off traditional owners. We are Australian, we are one. You are the racist scum. You never had a football, you never cultivated land, you never had towns or permanent buildings, you never had TV and you never had social security.  You claim a 60,000 year history and you did what?  Now let’s just watch the footy.

… you ABC s**t w***e, the whole world is not celebrating the passing of the Trump era. You, the ABC, and all of you media s**t w****s do not deserve to draw breath.  You had the power and you used it to promote division, well done. No thinking person trusts the media any longer thanks to you and your s**t/w****s compatriots. Feel proud when you explain your actions to you children and grandchildren.  Stalin, Hitler, Mao, Castro and other prominent lefties have used the s**t/w****s like yourself to further their careers, slaughtering millions…

The very same people will tell you how they have inhabited this country for 60,000 years, how did they survive? Certainly not by any form of agricultural management. Hunter gatherers, destined for extinction, until Anglo-Saxons arrived to save them. Where is their gratitude?

The employer’s Social Media Policy stated that staff should:

Be mindful that their behaviour [on social media] is still bound by the Code of Conduct (Policy 182);

Not make comments that are obscene, defamatory, threatening, harassing, discriminatory or hateful to or about your work or another person or entity related to your work; and

Not make opinions or comments that may be perceived to be representative of our opinion …

The employer terminated the employment on the basis that:

• the employee’s personal Facebook account, clearly stated that he was employed by the employer and contained numerous posts by him of a discriminatory, sexist and/or racist nature.
• those posts may have been perceived to be representative of the opinion and values of the employer. 
• such conduct was a serious breach of the employer’s Code of Conduct, values, Social Media Policy, and the professional and ethical standards required as an employee; and
• the employee refused to change his posts or the nature of his posts.

During his unfair dismissal hearing, the employee said that any offence that could be taken was dependent on whether he intended for the Facebook postings to be offensive.  He said that because he did not intend them to be offensive, no offence should be taken by a reader of the posts.

The Commission was satisfied however that the content of the Facebook posts was such that a reasonable person would be offended by the language used by the employee to express himself, and similarly would take offence to the gravamen of the posts.  

The Commission also commented that whether the employee sought to offend by his posts was of no consequence.

The Commission concluded that, on the basis that the misconduct was serious and in clear breach of the contract of employment and the employer’s Social Media Policy, the employer had a valid reason for terminating the employment, and the termination was not harsh, unjust or unreasonable.

Lavan Comment

The Fair Work Commission has long held that what is published on social media can have an impact on the workplace and be grounds for termination.  That is the case even if social media is being used solely outside of working hours.

The rationale is that while a post may initially be made outside of working hours, that post does not cease to exist once work commences.  As the Commission stated in this decision, “it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences”.

Social media posts are often found to be a valid reason for dismissal where an employee criticises the employer publicly.  The impact of such a post, whether posted during or outside working hours, can have a lingering negative effect on an employer, its staff and business reputation.
Further, as this decision demonstrates, an employee can also be terminated when the views posted by the employee are inconsistent with those of the employer and the employee’s views may be perceived to be representative of those of the employer.

At a time when 64 percent of Australians are active Facebook users,² this decision is a timely reminder that employers should have a robust policies about social media use (inside and outside of work hours), and make sure employees are conversant with such policies.

If you have any questions about your organisation’s social media policy, please contact Lavan’s Education and Employment team.