By Charles Power*
Social media is good for business. However when the business of an organisation is the development of government policy, the use of Twitter, Facebook and other platforms by public servants can create problems.
This was certainly the experience of the Commonwealth Department of Immigration who discovered an officer using the Twitter handle’ of “@LALegale” to make and share regular comment (sometimes mocking, sometimes critical) on the practices and policies her employer.
The Department’s rules prohibited unofficial public comment that is, or is perceived to be, harsh or extreme in its criticism of the Government. After an investigation the Department threatened to dismiss the employee for breaching those rules.
The employee argued in the Federal Circuit of Courts (Banerji v Bowles  FCCA 1052 (9 August 2013)) that, as a member of the public service, she had a constitutionally protected right of political expression which operates to prevent her dismissal.
The employee contended that her implied freedom arose out comments made by Kirby J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 260 .
In those comments Kirby J observed that broadcasting of ideas about government or politics relevant to the activities of the Federal Parliament or of a State parliament attracts some Constitutional protection.
However, the Court in Banerji noted that this ‘freedom’ can be restricted by other laws made for other purposes that may also be compatible with the Constitution. Even if there is constitutional right of this kind, it did not (observed the Court) provide her with a licence to breach her contract of employment.
If a private sector employee is disciplined for expressions of political opinion on-line the employer may contravene the general protections granted to employees under Part 3-1 of the Fair Work Act 2009 (Cth).
However, the employer will have a defence if it can establish that discipline was taken because of the inherent requirements of the particular position concerned.
This requirement for a connection between the social media rules and the employee’s work is also relevant to the question of whether dismissing an employee for breaching those rules is unfair.
A string of recent unfair dismissal cases have dealt with the dismissal of employees for making private social media comment made out of hours. These cases suggest dismissal for such comment is more likely to be defensible where the content:
- is closely connected to the workplace;
- is serious in nature;
- identifies individuals and the employer;
- is accessible by other employees or manager;
- disparages a co-worker, manager or the employer; and
- is authored by a user who was not a ‘savvy’ Facebook user and ignorant of the use of privacy settings.
In Linfox Australia Pty Ltd v Stutsel (2012) 217 IR 52 the FWA Full Bench confirmed that Linfox had unfairly dismissed an employee who had offensive and derogatory comments about his managers on his Facebook page. The comments included references to ‘bacon haters’ in relation to a Muslim manager, comments about terrorism and the death of a Muslim terrorist, and comments of a sexual nature about a manager who was female.
The Full Bench confirmed that an employee posting derogatory, offensive and discriminatory statements or comments about colleagues on Facebook may provide a valid reason for termination of employment. However, in this case the valid reason did not warrant dismissal because of the employee's age, length of service, excellent employment record, misapprehension of the privacy settings of his Facebook page (he believed that his account was set on the maximum possible privacy setting) and the lack of disciplinary action taken against the other employees who had posted comments on the dismissed employee’s page, and the lack of a social media policy.
The fact that social media is an [in]extricable part of Australian society creates new challenges for Australian employers. Recent case law contains a warning for employers – be careful not to overreach and intrude into the private sphere of individuals where this is not a reasonable and proportionate response to the need to protect the employer’s interests.
*Charles Power is a workplace relations specialist and partner of law firm Holding Redlich
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