Employers are putting their employees and prospective employees social media accounts under the microscope more than ever before – but where does the law stand if you want to dismiss someone who has harmed your business’ reputation online?
There are a number of recent law cases which explore the blurring lines between what’s personal and what’s business when it comes to posts on social media.
These cases deal with the issue of freedom of speech and freedom of expression and have important consequences for employers and employees.
Only a few months ago the High Court of Australia made a landmark decision in the case of Michaela Banerji versus her former employer, the Federal Government, ruling that she had not been unfairly dismissed over tweets criticising the government’s immigration policies as well as its treatment of immigration detainees, which she published under the Twitter handle ‘LaLegale’ in order to remain anonymous.
The High Court was asked to decide whether Ms Banerji’s termination was unlawful on the basis that it breached the Australian Constitution’s implied right of freedom of political communication.
But, in a unanimous decision on 7 August 2019, the High Court Justices ruled that the dismissal was in fact lawful, because the Australian Public Service (APS) code was proportionate to its purpose of maintaining an apolitical public service. Furthermore, the court explained that the APS guidelines explicitly warn staff that they are not protected by anonymity when posting online, saying: “There is no reason to suppose that “anonymous” communications cannot fail to uphold the integrity and good reputation of the APS.”
The High Court also noted the APS guidelines make clear that, “as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed”.
Implications of the decision
The judgment sets a precedent to the effect that the right of public sector employees to freely communicate on political matter is constrained by rules set down by their employer, including any codes of conduct.
Even more recently, the Federal Court returned a similar judgement against a lawyer was sacked for criticising government clients of the firm he worked for. The lawyer, Gary Rumble, was dismissed after “irritating” his boss by speaking publicly about the abuse suffered by Australian Army, Navy and Airforce recruits over a period of several decades. Mr Rumble heavily criticised the Australian Government for not doing more to support these victims. Eventually, he was fired for doing so.
You might also remember that Cricket Australia sacked an employee last year who tweeted about her views and met with government about accessibility to abortions in Tasmania.
And also that Israel Folau is currently fighting Rugby Australia’s decision to terminate his contract after he posted comments on social media he claims involved him expressing freedom of religious belief.
So, can you fire an employee for speaking their mind?
This is an incredibly complex issue, made more complicated in a day and age when each of us – though the power of social media – has the power to ‘publish’ our own material allowing it to reach hundreds, even thousands of people instantly. And it is an issue that is only now beginning to be tested properly in Australian courts.
If you have an employee who has criticised your business or the nature of their work within your business, then you may have grounds for dismissal.
However, the key guidelines for dismissal really lie within your employment contracts and your workplace codes of conduct as well as any other relevant policies.
Employers do have the right to introduce new policies and make changes to existing ones provided any new information is widely communicated to all employees. It is also in an employer’s best interests to ensure that these policies are written in such a way that they are not open to broad interpretation, that they include information about how they will be enforced as well as the consequences for anyone who breaches them.
Creating a social media policy
In creating a social media policy, you will want to ensure that the document distinguishes between what is appropriate for the business’ professional social media presence and an employee’s personal social media presence.
- Protects the business from reputational harm
- Protects confidential information or secrets of success
- Minimises the business’ legal liability for any employee posts which may harass or discriminate another person — there are some situations where an employer could be held responsible for an employee’s actions.
- Use employees as ambassadors for business and brand.
It’s important that your social media policy meets these objectives without censoring your employees. It’s also really important that you take the time to consider the nature of your business and your transactions and interactions with suppliers, clients, customers and the wider community. It’s also a good idea to consider offering regular social media training for your employees and use this opportunity to discuss the expectations of your business under the social media policy.
If a breach occurs.
If you believe that an employee has breached your social media policy, seek legal advice immediately. If the post has serious consequences you may need to have it removed, but you will also want to ensure that you keep any evidence should you need it in court. While it is possible to dismiss an employee for breaching social media policy it’s also important to ensure that due process of workplace legislation with regard to warnings and / or termination is followed correctly to protect your business while you deal with the actions of the employee in question.
Sonia Hickey is a freelance writer, magazine journalist and owner of ‘Woman with Words’. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team.