Social Networks

Written by Sooraj Sidhu and Lindsay Carroll, NRA Legal

With 60% of the Australian population actively using Facebook, there is no doubt that social media has changed the way we go about our every day.

In the context of managing employees, social media has blurred the lines between public and private life and provided an opportunity for inappropriate behaviour to occur amongst employees outside of business hours.

Traditionally, it has been unlawful for employers to attempt to regulate their employees’ out-of-hours conduct. However, in recent years, social media has played a much larger role in unfair dismissal, general protections and anti-bulling applications, indicating a need to revisit these principles in more depth.

When can employers regulate out-of-hours conduct?

It has long been established that employers will have no right to control or regulate their employee’s conduct outside of work except in certain circumstances. Such circumstances are limited but would include:

  • where, viewed objectively, conduct is likely to cause serious damage to the employment relationship;
  • where conduct causes damage to the employer’s interests; or
  • where conduct is incompatible with the employee’s duties.

Put another way, the conduct complained of must be of such gravity or importance as to demonstrate the employee’s rejection of their contractual obligations.

These principles have been consistently upheld in determining whether out-of-hours conduct can be considered to support disciplinary action up to and including termination of employment.

Can an out-of-hours message on Facebook Messenger justify dismissal?

In a recent case before the Fair Work Commission, a stevedore employee brought an application for unfair dismissal after being terminated by his employer for conduct which had occurred during his rostered week off.

On 4 July 2017, Mr Colwell had returned home from the pub where he continued to drink alcohol. Later that night, Mr Colwell received a message over Facebook Messenger containing a sexually explicit video.

Mr Colwell forwarded the video individually to 20 of his Facebook friends, which included 19 of his colleagues. After receiving a mixed response from the recipients, Mr Colwell posted an apology to his personal profile the following day.

None of his colleagues who had received the video made a complaint to their employer. However, after discussions with some employees, the General Manager had become aware of the message and invited three female recipients to provide further information.

Despite being on pre-approved unpaid leave, Mr Colwell was presented with allegations of sexual harassment to which he expressly denied. After careful consideration, the employer elected to terminate his employment for serious misconduct.

In his application, Mr Colwell argued his dismissal was unfair as no-one had made a complaint against him in relation to his conduct. This was swiftly rejected by Commissioner McKenna on the basis that the employer did not need a formal complaint to investigate issues of harassment in the workplace.

In the alternative, Mr Colwell submitted that there was no valid reason for dismissal and that the video was no proper business of the employer. Whilst Commissioner McKenna acknowledged that his conduct, being out-of-hours, presented a real contestable issue, she disagreed that it was irrelevant, stating:

If an employee engages in conduct outside of the physical workplace towards another employee that materially affects or has the potential materially to affect a person’s employment that is a matter which legitimately may attract the employer’s attention and intervention.

According to Commissioner McKenna, Mr Colwell would not have met the 19 individuals and added them as Facebook friends but for their employment relationships and as a result, there was a sufficient nexus between his work and out-of-hours behaviour.

In the Commissioner’s view, the employer was not attempting to regulate the employee’s use of private social media, but rather trying to respond to what was understood to be the dissemination of pornography to employees.

How can the NRA assist?

There will rarely, if ever, be clear cut circumstances where an employee’s misconduct over social media warrants disciplinary action. As in most cases, the appropriate action for an employer to take will require consideration of all relevant factors, including the employee’s length of service, position, seniority and employment history.

However, what is abundantly clear from case law is that employers will be in a better position to defend their actions where they can point to a policy that sets clear boundaries with respect to the use of social media during employment.

NRA can assist your business to develop written policies on social media use and general workplace behaviours. Alternatively, if you are dealing with an employee who you suspect has misused their social media accounts, call one of our dedicated workplace relations advisors on 1800 RETAIL (738 245).