Can personal communication or social media comments still be a valid reason for termination?

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The horse has bolted …

… that train has left the station, that’s through to the ‘keeper.

We love the way common expressions, particularly Australian expressions, create simple and quite witty ways to convey complete concepts.

The use of social media in all its various formats – Facebook, Twitter, Instagram, LinkedIn and so on – has expanded incredibly in recent years.

Where the pub or the water cooler used to be the place to vent one’s spleen, social media has provided a replacement venue … on steroids! It is a common and largely inaccurate assumption that what is said after work hours or in so-called safe places such as a private social media account is not the employer’s business. This reasoning is further argued that a social media post only directed to friends or made anonymously is nobody else’s business. But what if even one of those friends shares a post? That person’s friends are then in the loop – and they may share …

As we say, the horse has bolted, and while the gate may be slammed shut by deleting the original post, it is no use whatsoever if the horse is already halfway to the next county.


Cause and effect

Numerous cases in recent years have quite clearly shown the logic that the Fair Work Commission (FWC) uses in determining whether or not a dismissal because of alleged inappropriate social media posts is justified.

One consistent element is that, in this day and age, employers are well-advised to have a sound Social Media Policy. Not only should the policy exist, but all employees need to be aware of it and thoroughly educated on its intent.

When it comes to the actual posts, it should be noted that posts that are immature, crude, anti-social or inappropriate are not necessarily cause for termination on those grounds alone.

The FWC has further shown that for social media comments to be grounds for dismissal:

  • The post, when viewed objectively by a reasonable person, would show that it is likely to cause serious damage to the relationship between employee and employer.
  • It is likely to damage the employer’s interests.
  • It is incompatible with the employee’s duty to the employer.

In one case, a poster sent pornographic material to social media friends, some of whom were also work colleagues. While this action did not necessarily breach the guidelines above, it was determined that because the material had been sent to fellow employees, the person had breached the company bullying and harassment policy. The termination was upheld.


Smile … you’re on candid camera!

While social media comments are the focus here, it raises the question of after-work behaviour, and personal communication or group text messaging that is not on social media. At first glance, these are different circumstances, yet with the almost instant appearance of phone cameras in any situation, the ability to immediately upload photos or footage, the rapidity with which items of interest go viral, and the potential speed of recirculating texts, it needs to be understood that nothing is necessarily private anymore.

The circumstances under which after-work behaviours are grounds for dismissal are varied and complex. The best advice we can give is to err on the side of restraint, and assume that any behaviour may be circulated, whether that was the intent or not, and if in any doubt seek proper legal advice.

Owen Hodge Lawyers  – experts in employment law. Contact us today if you have any questions about the content raised in this or any other blog. We are here to help. 


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