A Com­plaint is Made

It’s hard­ly a start­ing or nov­el obser­va­tion that social media plat­forms like Twit­ter and Face­book are not always exem­plars of cour­te­ous, respect­ful dis­cus­sion and debate. Exchanges can often descend into insults and crude ad hominem attacks. On occa­sion these exchanges will end with one of the par­ties threat­en­ing to ​“report” the oth­er to their employ­er, even when the state­ments in issue are made from a non-work per­son­al account and the sub­ject mat­ter of the exchange has no con­nec­tion with the employ­ment of either party.

A sim­i­lar sit­u­a­tion can arise when high­ly con­tentious or objec­tion­able views are expressed by an account hold­er. This might result in a state­ment from an offend­ed par­ty (or some­one pur­port­ing to take offence on behalf of oth­ers) that they are going to noti­fy the account hold­er’s employ­er. Some­times this takes the form of tag­ging in the employ­er’s offi­cial social media account with words to the effect, ​“Do the [Posts/​Tweets] of [@Employee Name] reflect the views of [@Employer Name]?”

What can and should an employ­er do (if any­thing) when an issue of this kind is raised with them?

Social Media Pol­i­cy and the Lim­its of Employ­er’s Prerogative

The start­ing point should be the employ­er’s social media pol­i­cy. What does it say about the con­duct which is the sub­ject of the com­plaint? For instance, it might pur­port to pro­hib­it employ­ees from engag­ing in offen­sive, insult­ing or dis­crim­i­na­to­ry con­duct when using social media. A breach of the social media pol­i­cy could form the basis for dis­ci­pli­nary action against an employ­ee (pro­vid­ed, of course, the pol­i­cy is acces­si­ble and wide­ly promulgated).

This is, how­ev­er, where employ­ers need to be care­ful. Many social media poli­cies are draft­ed with­out a full appre­ci­a­tion of how dif­fer­ent social media plat­forms func­tion in prac­tice and the lim­its of an employ­er’s pre­rog­a­tive. These lim­its are delin­eat­ed by the right of an employ­er to give a ​“law­ful and rea­son­able direc­tion”. While an employ­er will have a capac­i­ty to ful­ly con­trol what is post­ed or tweet­ed from one of its offi­cial accounts, its capac­i­ty to lim­it what employ­ees post or tweet from their own per­son­al, non-work accounts is more lim­it­ed. Many social media poli­cies over­reach and don’t make this cru­cial dis­tinc­tion. With few excep­tions, an employ­er does not have an unfet­tered right to reg­u­late posts or tweets from an employ­ee’s per­son­al, non-work account.

The analy­sis in cas­es that have con­sid­ered social media issues has been large­ly informed by the approach of the then Aus­tralian Indus­tri­al Rela­tions Com­mis­sion in Rose v Tel­stra Cor­po­ra­tion [1998] AIRC 1592, a deci­sion deal­ing with out of hours con­duct of employees. 

As Ross VP (as he then was) observed in that deci­sion:
​“It is clear that in cer­tain cir­cum­stances an employ­ee’s employ­ment may be valid­ly ter­mi­nat­ed because of out of hours con­duct. But such cir­cum­stances are limited:

• the con­duct must be such that, viewed objec­tive­ly, it is like­ly to cause seri­ous dam­age to the rela­tion­ship between the employ­er and employ­ee; or

• the con­duct dam­ages the employ­er’s inter­ests; or

• the con­duct is incom­pat­i­ble with the employ­ee’s duty as an employee.

In essence the con­duct com­plained of must be of such grav­i­ty or impor­tance as to indi­cate a rejec­tion or repu­di­a­tion of the employ­ment con­tract by the employee.

Absent such con­sid­er­a­tions an employ­er has no right to con­trol or reg­u­late an employ­ee’s out of hours con­duct. In this regard I agree with the fol­low­ing obser­va­tion of Finn J in McManus v Scott-Charl­ton:
​‘I am mind­ful of the cau­tion that should be exer­cised when any exten­sion is made to the super­vi­sion allowed an employ­er over the pri­vate activ­i­ties of an employ­ee. It needs to be care­ful­ly con­tained and ful­ly justified.”

It’s not the role of the employ­er to play ​“Social Media Police Offi­cer”, ensur­ing that their employ­ees are always engag­ing in exem­plary online behav­iour. For dis­ci­pli­nary action to be tak­en, the rel­e­vant con­duct must have some nexus to the inter­ests of the employ­er, for instance, by caus­ing real harm to the employ­er’s rep­u­ta­tion, stand­ing, brand or work­place environment.

While the test above was for­mu­lat­ed before social media exist­ed in its cur­rent (almost ubiq­ui­tous) form, it nev­er­the­less pro­vides a sound foun­da­tion for deter­min­ing whether there is a prop­er legal basis for tak­ing action. There is also a nascent but quick­ly devel­op­ing body of Fair Work Com­mis­sion deci­sions relat­ing to social media use. 

Some Obser­va­tions

When a social media con­duct com­plaint or issue is raised, the way in which it should be addressed will depend upon the cir­cum­stances of the case.

There are, how­ev­er, some gen­er­al obser­va­tions that can be made. 

First, some­times an employ­ee’s per­son­al, non-work account will nev­er­the­less iden­ti­fy their employ­er. A com­mon for­mu­la­tion in a pro­file bio are words to the fol­low­ing effect: ​“A [Occupation/​Position Title] with [Employ­er Name]. Views are my own.” This is, of course, how the employ­er of an account hold­er may be read­i­ly ascer­tained by an aggriev­ed par­ty. Employ­ees who have a bio like this are usu­al­ly hav­ing a bet each way. Such an approach begs the ques­tion — if the views have noth­ing to do with the employ­er, then why is the employ­er men­tioned at all? With the excep­tion of a plat­form where the per­son­al and pro­fes­sion­al are inex­tri­ca­bly con­nect­ed (LinkedIn being the prime exam­ple), a spe­cif­ic ref­er­ence to an employ­er makes it more dif­fi­cult for an employ­ee to cogent­ly argue the views expressed on that account have noth­ing to do with their employ­er, and more dif­fi­cult for the employ­er to dis­avow those views in man­ag­ing any con­se­quences. Employ­ees should reflect upon whether it’s nec­es­sary to do it. The social media poli­cies of employ­ers should address this point.

Sec­ond, and relat­ed to the obser­va­tion above, if an employ­ee makes no ref­er­ence to their employ­er (either in their bio or the con­tent of their account) and their employ­er can only be ascer­tained (or per­haps only guessed at) by some detec­tive work (usu­al­ly Google search­es) then that weak­ens the argu­ment that the con­duct is con­nect­ed to employ­ment. The com­plainant has had to take extra steps to seek to make the con­nec­tion them­selves. In that regard, employ­ers should be wary of answer­ing a ques­tion from a com­plainant as to whether a par­tic­u­lar non-work account belongs to one of their employees.

Third, even if an employ­ee uses a non-work account that makes no ref­er­ence to their employ­er it might con­tain con­tent that is so offen­sive or objec­tion­able that, if a con­nec­tion was to be made, could jus­ti­fy dis­ci­pli­nary action, par­tic­u­lar­ly if the con­tent is anti­thet­i­cal to the prop­er dis­charge of the posi­ton held by the employ­ee or the val­ues of the employ­er. To take an obvi­ous exam­ple, if it was estab­lished that an employ­ee respon­si­ble for diver­si­ty and anti-dis­crim­i­na­tion with­in an organ­i­sa­tion had made a series of racist or misog­y­nis­tic tweets or posts, then the fact the non-work account made no ref­er­ence to their employ­er will like­ly not offer much by way of a defence. 

Fourth, there is often noth­ing spe­cial about a dis­pute or argu­ment on social media. If the neigh­bour of an employ­ee rang an employ­er to com­plain the employ­ee plays music loud­ly at night the employ­er would, with a high degree of jus­ti­fi­ca­tion, char­ac­terise the dis­pute as a pri­vate mat­ter which has noth­ing to do with the employ­er and dis­miss it accord­ing­ly. A sim­i­lar approach can some­times be applied in rela­tion to social media complaints. 

Final­ly, employ­ers should take care not to appor­tion too much weight to the fact that a tweet or post has gone ​“viral”. It’s a trite but nev­er­the­less accu­rate obser­va­tion that the num­ber of peo­ple out­raged by a state­ment on social media is not nec­es­sar­i­ly an objec­tive reflec­tion of how inap­pro­pri­ate or offen­sive it actu­al­ly is.

Tips for Employers

Some tips for employ­ers in address­ing the issue of offen­sive (or alleged­ly offen­sive) con­duct on social media by employ­ees on per­son­al, non-work accounts:

1. Review your social media pol­i­cy. Does it make a prop­er dis­tinc­tion between posts on offi­cial employ­er accounts as opposed to posts on per­son­al employ­ee accounts? Does it ask employ­ees to con­sid­er the need to iden­ti­fy their employ­er on their per­son­al account?
2. Don’t jump to con­clu­sions or engage in knee-jerk reac­tions. Con­sid­er all of the cir­cum­stances of any sce­nario care­ful­ly. Inves­ti­gate the mat­ter prop­er­ly. Take informed advice.
3. Ensure any dis­ci­pli­nary response is pro­por­tion­ate. A ​“social media out­rage” of itself is high­ly unlike­ly to be con­sid­ered a valid rea­son for ter­mi­na­tion by the Fair Work Com­mis­sion if unfair dis­missal pro­ceed­ings are com­menced. The con­duct will need to be objec­tive­ly seri­ous and, con­sis­tent with Rose v Tel­stra Cor­po­ra­tion, be dam­ag­ing to the inter­ests of the employer. 
4. Ensure any dis­ci­pli­nary action against an employ­ee does not con­sti­tute adverse action under the Fair Work Act or breach anti-dis­crim­i­na­tion laws.