This guide outlines the circumstances when personal communication or social media comments can be a valid reason for employment termination.
The use of social media in all its various formats has expanded incredibly in recent years. It is a common — and largely inaccurate — assumption that what is said after work hours or in so-called safe places such as a private social media account is not the employer’s business and not a reason for employment termination.
This reasoning is further argued that a social media post only directed to friends or made anonymously is nobody else’s business.
But what if even one of those friends shares a post? That person’s friends are then in the loop – and they may share…before you know it the horse has bolted.
Cases for employment termination
Cause and effect
Numerous cases in recent years have quite clearly shown the logic that the Fair Work Commission (FWC) uses in determining whether or not an employment termination because of alleged inappropriate social media posts is justified.
One consistent element is that, in this day and age, employers are well-advised to have a sound Social Media Policy. Not only should the policy exist, but all employees need to be aware of it and thoroughly educated on its intent.
When it comes to the actual posts, it should be noted that posts that are immature, crude, anti-social or inappropriate are not necessarily cause for employment termination on those grounds alone.
The FWC has further shown that for social media comments to be grounds for employment termination:
- The post, when viewed objectively by a reasonable person, would show that it is likely to cause serious damage to the relationship between employee and employer.
- It is likely to damage the employer’s interests.
- It is incompatible with the employee’s duty to the employer.
In one case, a poster sent pornographic material to social media friends, some of whom were also work colleagues. While this action did not necessarily breach the guidelines above, it was determined that because the material had been sent to fellow employees, the person had breached the company bullying and harassment policy. The employment termination was upheld.
Smile … you’re on candid camera!
While social media comments are the focus here, it raises the question of after-work behaviour, and personal communication or group text messaging that is not on social media.
At first glance, these are different circumstances, yet with the almost instant appearance of phone cameras in any situation, the ability to immediately upload photos or footage, the rapid pace with which items of interest go viral, and the potential speed of recirculating texts, it needs to be understood that nothing is necessarily private anymore.
The circumstances under which after-work behaviours are grounds for employment termination are varied and complex. The best advice we can give to employees is to err on the side of restraint, and assume that any behaviour may be circulated, whether that was the intent or not, and if in any doubt seek proper legal advice.
For employers, setting and documenting expectations around social media use within policies and procedures will ensure you have grounds to take action as needed. Seeking legal advice will provide more clarity around whether employment termination is warranted or what other steps should be taken.
Rolf Howard, Managing Partner, Owen Hodge Lawyers
Rolf is Managing Partner of Owen Hodge Lawyers. He has been in the legal practice since 1986 and a partner of Owen Hodge Lawyers since 1992. Rolf focuses on assisting clients to proactively manage legal responsibilities and opportunities to achieve competitive advantage. Rolf concentrates on business planning and formation, directors’ duties, corporate governance, fund raising and business succession. His major interest is to assist business owners and their financial advisers plan and implement strategies to build and exit from successful businesses. www.owenhodge.com.au
