Australia: Misusing social media – where can employers draw the line?

The Full Federal Court has handed down its decision in Linfox Australia Pty Ltd v Fair Work Commission. The Full Court upheld the decision of the Full Bench of the Fair Work Commission that Linfox unfairly dismissed a truck driver for posting offensive and discriminatory comments about two of his managers on his Facebook profile page. However, the Full Court’s decision is largely confined to appeal-related matters and does not greatly assist employers in assessing employee misuse of social media.

Employers can nevertheless take heart from recent Fair Work Commission (FWC) and Federal Circuit Court decisions which have adopted a more robust view of misuse of social media. These decisions reflect an acceptance that employees have an increasingly sophisticated understanding of social media which their workplace behaviour ought reflect.

Whilst each incident of social media misuse turns on its own facts, employers with comprehensive, well-communicated and up-to-date social media policies are best positioned to hold employees accountable for their actions and defend legal claims such as unfair dismissals.

Background

Mr Stutsel was employed by Linfox as a truck driver between April 1989 and the termination of his employment on 31 May 2011. Mr Stutsel’s employment was terminated for serious misconduct following the posting of offensive and discriminatory comments about two of his managers on his Facebook profile page.

At first instance Commissioner Roberts found the comments to be akin to ‘a group of friends letting off steam and trying to outdo one another in being outrageous’ and, whilst in poor taste, did not amount to serious misconduct.

The Full Bench upheld Commissioner Roberts’ decision on appeal. In doing so, the Full Bench made a number of observations regarding:

the approach to be taken in assessing whether offensive comments published on social media constitute a valid reason for termination, and

the ‘other factors’ which might impact on whether a termination is otherwise unfair in such circumstances.

We have previously discussed the decision of Commissioner Roberts at first instance and the Full Bench on appeal in Anti-social media: Linfox Full Bench sets a framework for assessing misuse, and Employer’s lack of social media policy results in reinstatement.

The Full Court’s decision in Linfox

The Full Court confined its analysis to whether or not the Full Bench fell into jurisdictional error in dismissing Linfox’s previous appeal. Unlike the Full Bench before it, the Full Court did not make any broader observations around the types of social media misuse which might justify termination. Aside from providing a timely reminder of the narrow grounds available to challenge a Full Bench determination, the decision does not, of itself, assist employers greatly in providing guidance on the appropriate disciplinary outcomes relating to employee misuse of social media.

An evolving body of law – other recent developments

Despite the lack of guidance to be drawn from the Linfox Full Court decision, other recent FWC and Federal Circuit Court decisions have shown a gradual trend away from placing weight upon evidence of an applicant’s lack of awareness of social media or a right to free speech (each of which Commissioner Roberts found to be a significant ‘other factor’ at first instance in Linfox).

For example:

in Little v Credit Corp Group Limited [2013] FWC 9642, Deputy President Sams found that an employee’s actions in using his personal Facebook account to criticise a third party organisation with which his employer had professional dealings and to make sexually suggestive comments about a new employee constituted valid reasons for termination of the employee's employment. The employer had implemented a Code of Conduct which addressed appropriate use of social media. The employee was aware of, and was trained in, the Code.

Notably, Deputy President Sams found that the termination of the employee's employment would have been fair even absent the Code of Conduct. In this regard, the Deputy President observed that the employee “hardly needs written policies or codes of conduct to understand and appreciate that, firstly, the kind of sexual comments made…were grossly offensive and disgusting and were more than likely to cause hurt and humiliation.”

The Deputy President also found that the comments made by the employee about the third party organisation were likely to adversely impact on the employer’s relationship with that organisation and damage the employer’s wider reputation.

in Banerji v Bowles [2013] FCCA 1052, a Department of Immigration and Citizenship (DIAC) employee was investigated for alleged breaches of the Australian Public Service Code of Conduct. The alleged breaches concerned the employee's use of her Twitter account to criticise the Australian Government’s immigration policies, various politicians and other DIAC employees. The employee sought (amongst other things) a declaration from the Federal Circuit Court to the effect that any finding of a Code of Conduct breach relating to her ‘tweets’ would in turn breach her implied right of political communication.

In this case Judge Neville found that:

• Australian law does not recognise an unfettered implied right of political communication,
• even if such a right were recognised, it would not provide a licence to breach a contract of employment, and
• the implied right is not a personal right, but a limitation on legislative power.

On that basis, Judge Neville held that the employee’s political comments, ‘tweeted’ whilst she was employed by DIAC and subject to the APS Code of Conduct and DIAC social media guidelines, were not constitutionally protected (and hence the declaration sought was not available).

These decisions form part of an evolving body of case law which reflects the increasing prevalence of social media use and a more sophisticated understanding of its implications in the workplace. Whilst each case must be considered on its merits, employees are increasingly less likely to succeed in an unfair dismissal (or other) claim by arguing that their ignorance of social media and its implications ought excuse their actions.

As we have noted previously, in Social networking: employer’s friend or foe?, and Anti-social media: Linfox Full Bench sets a framework for assessing misuse, employers should ensure that:

• they implement a comprehensive social media policy,
• employees are adequately trained in the policy and are aware of the employer’s expectations around social media in and out of the workplace, and
• the policy is regularly reviewed in order to maintain currency.

With these 'protections' in place – and with the benefit of courts and tribunals progressively holding employees to a higher level of understanding and behaviour in the social media space – employers are best positioned to minimise instances of social media misuse and to maximise their prospects of defending unfair dismissal (or other related) claims.

Employers should also be mindful of the following considerations:

• a serious breach of a social media policy will generally constitute a valid reason for termination (depending on factors such as the nature of the content and the breadth of its publication),
• the ‘fairness’ of a proposed termination for a policy breach needs to be assessed against a range of relevant factors (including the employee’s length of service, disciplinary/work history, age and employment prospects, the particular circumstances of the breach and the employer’s treatment of other similar cases), and
• courts and tribunals are increasingly willing to hold employees accountable for social media misuse (and hence employers should not shy away from robust disciplinary responses in appropriate cases).

This article was written by Paul Burns, Partner, and Andrew Pollock, Solicitor, Melbourne.