The boundaries between public life and private life, specifically in relation to the workplace and the home, have become porous. And the question for many organisations is whether they can control what their employees post on social media.
The answer, like most legal answers, is that it depends on the circumstances and more particularly what your employment policies say. In this post, we take a look four cases on the issue and then we provide some practical tips your organisation can implement.
Chief of the Defence Force v Gaynor  FCAFC 41; 246 FCR 298
Bernhard Gaynor was a reservist and had his commission with the Army terminated in 2013. Why? Because he posted a series of comments on his personal Twitter account and Facebook page reflecting his political views, which included comments that he would not let a homosexual person teach his children.
Gaynor made these comments during a time when he was not on duty, not in uniform, and not doing anything connected with the Australian Defence Force (ADF). However, Gaynor’s web page identified him as a reservist, including through photos he had posted of himself in his Army uniform, as well as references to his time served in Iraq. Gaynor was requested to remove his posts as they were contrary to the ADF’s policies, which he refused.
The Court accepted ADF’s submission that the rationale for restrictions imposed on its members is the “crucial and indubitable understanding that personnel must operate in circumstances of grave danger in which reliance upon one another and instantaneous obedience of orders are essential”.
Gaynor argued that he had a Constitutional right to freedom of political communication. However, the Court disagreed with this argument, stating that any potential harm to the freedom of political communication is outweighed by the need to reserve the ability to terminate the service of individuals whose conduct and behavior places them in a category where their continued presence in the ADF is assessed to be sufficiently serious to justify their termination of service.
The key message for employers from this case is to consider the nature of the role of the employee, the values of the organisation and the policies the organisation has in place.
Banerji v Bowles  FCCA 1052
Ms Banerji was employed by the Department of Immigration. Using her private Twitter account, she criticised Australian refugee policies, politicians and other employees of the Department. The tweets were made using the anonymous Twitter handle ‘@LALegale’. A complaint was made against her for inappropriate use of social media and her being employed in outside employment without permission.
The Department asserted that the tweets were in breach of the APS Code of Conduct as they included ‘harsh or extreme’ criticisms of the government, generating an impression that she could not work impartially for the Department. Ms Banerji argued that her comments were protected by the constitutional freedom of political communication. However, the Court dismissed Ms Banerji’s appeal stating that there is no unfettered right or freedom of expression/communication and that the general law that rights are “not unbridled or unfettered.”
The court concluded that the political comments tweets, while Banerji was employed by the Department, were not protected by the asserted implied right to freedom of political expression. Influencing the court’s decision were provisions of the Public Service Act 1999 to the effect that an employee “must at all times behave in a way that upholds the good reputation of Australia”, and must behave honestly and with integrity and avoid any conflict of interest. In addition to the contract of employment are the Australian Public Service Code of Conduct and departmental social media guidelines. It did not help Banerji’s case that her tweets occurred while she was working for another employer, without the permission of the Department.
Justice Neville made it clear to public sector workers across Australia that anonymous venting on social media about the Government’s policies would be a breach of the APS Code of Conduct and departmental policies on social media use.
Fitzgerald v Escape Hair Design  FWA 7358
This case involved a hairdresser who was dismissed for a variety of reasons, including posting a ‘public display of dissatisfaction of employment’ on her Facebook page. The post read:
“XMAS ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]”.
The comment was only accessible by the hairdresser’s Facebook friends, but some of these friends were also clients of the salon. The hairdresser removed the comment a few weeks later. The Fair Work Commission held that the dismissal was unfair. The comments did not directly name the employer and were directed at the industry in general. Furthermore, on becoming aware of the comments the employer did not take immediate action to have them removed.
The key learning here was that if the employer had had a clear policy about appropriate use of social networking tools and acted promptly when they became aware of inappropriate comments, the employer’s position may have been different.
Wilkinson-Reed v Launtoy Pty Ltd  FWC 644
In this case, the employee was dismissed for a private conversation on Facebook where the employee conveyed to the business owner’s estranged wife the sentiment that everyone at the workplace thought the owner was a ‘tosser’. The owner saw the message when he was secretly using the ex-wife’s password to spy on her account. The employee’s comments were not a public post on the Facebook wall but a private message. Unsurprisingly, the employee’s dismissal was found to be unfair and she was awarded compensation.
There is a tension in the use of social media between the idea that what an employee does in their “downtime” is separate to their employment, and an employee’s obligations to their employer, such as duties of confidentiality.
A well drafted social media policy should draw a distinction between the use of social media for and on behalf of the employer, and the use of social media in a private context. An employer will naturally have a greater level of control over the former than the latter. Turn your mind to just how far you need to intrude on workers’ privacy in order to protect business interests and get the balance right.
Social media policies should:
- Set the expectations of the organisation
- State the purpose – which is to protect the reputation and security of a business
- Use language broader than ‘at work’ or ‘in connection with…’
- Include a statement as to breach and likely disciplinary action, including termination
- Define ‘Reasonable personal use’ or ‘Excessive use’ of social media at work and possible consequences for employees.
Griffin Legal can assist in reviewing and drafting social media policies. Contact us on 02 6198 3100.