14/08/2019

Last week’s High Court decision in Comcare v Bannerji serves as a timely reminder to employers about the importance of setting out employees’ obligations under a code of conduct or other policy dealing with social media. 

The Court held that the termination of Ms Bannerji’s employment by the Commonwealth for posting 9,000 anonymous tweets criticising her employer was justified under her employer’s code of conduct because of their connection with her work.  This was despite the fact that the tweets were made anonymously, nearly all outside of work hours and using her personal twitter account.  Whilst the case specifically deals with provisions of the Public Service Act and whether those provisions are unconstitutional, it reinforces the trend in recent case law that employees should be careful when posting critical messages about their employer on social media (even where messages are posted anonymously).

What the High Court found

The Court held that:

  • as it has held many times before, the constitutional freedom of political communication is not a personal right of free speech;
  • a code of conduct requiring the Commonwealth’s employees to uphold the reputation and values of the public service at all times was constitutionally valid and did not unjustifiably impact the freedom of political communication;
  • even anonymous comments can damage the integrity and reputation of the public service; and
  • anonymous comments are at risk of ceasing to be anonymous if the person’s identity is somehow revealed.  An employee making a post anonymously accepts this risk when making a post critical about their employer.

Factors to consider when an employee makes a critical social media post

An employer must still follow a proper disciplinary process when evaluating whether or not an employee has breached their employment obligations by making a social media post. The employer should and consider all factors before deciding to terminate an employee’s employment for making a post including: 

  • any damage to the employer’s reputation in the market caused by the post;
  • the effect of the post on the employment relationship; and
  • any conflict with the employee’s duties to the employer.

The High Court makes clear that an employee will have difficulty relying on their ignorance of the effect of social media to defend their actions and that making an anonymous post (considering the risk of the employee’s identity being discovered) will afford them little protection. 

This is not the first case where the law has grappled with similar issues.  The decisions made by the Fair Work Commission in relation to dismissal for use of social media (including the use of Facebook, Snapchat and Instagram) serve as useful guidance for employers.  Factors that have featured in the Commission’s rulings regarding employees making social media posts include:

  • a relevant connection between the employee’s employment and their conduct.  For example:
    • a social media policy that expressly applied to out of hours conduct (that the employee is aware of) may justify the dismissal of an employee who makes an offensive post outside of work hours;
    • where the employee has been trained on matters covered by a sexual harassment policy specifically dealing with sending sexually suggestive messages, this may justify the dismissal of an employee who makes sexual advances via Instagram to a person who will come into contact with the employee during the course of their employment;
    • actions that are taken by an employee contrary to the employee handbook may amount to serious misconduct;
    • however, a post that is offensive and vulgar will not be a valid reason for dismissal where it is not directed at the business of the employer or its employees, or there is no social media policy (or other policy governing the conduct in question);
  • where the post may potentially injure the employer’s business relationships with another organisation;
  • a post that showed “complete disrespect and disregard” to the employee’s manager that is made publicly and visible to other employees;
  • an employee’s position in the company hierarchy may be relevant to the assessment of whether the public comment was made in the course of employment; and
  • whether the recipient of a private social media message from the employee has made a complaint to the employer expressing concern about the message.

Your response to a social media post must be reasonable

This does not however entitle an employer to dismiss every employee that posts an unsavoury remark about it.  An employer’s response to a post must consider whether the employee could argue that the dismissal is harsh, unreasonable or unjust:

  • a childish and objectionable comment posted on Facebook may be a matter of concern and censure but not a ground for dismissal where it is unlikely to be detrimental to the employer’s business;
  • the employee’s past performance and “track record” should be considered when making a decision; and
  • the employer must accord procedural fairness when making decisions regarding the employee’s employment.

What you can do to protect your business from damaging social media posts

The best way to protect your business from suffering harm from an employee’s social media conduct is to prevent it happening in the first place.  Whilst clear and up to date policies governing employee conduct (including after hours’ conduct and whether or not the conduct is anonymous) and guidelines regarding social media usage are a helpful safeguard, they will be of little value if employees are unaware of their contents. 

To ensure that employees understand their obligations it is essential that they are explicitly informed of them.  This may take place through regular training sessions about social media and conduct outside of work hours or email updates on these topics.

 

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