A tweet too far: Employment laws challenged

by 18 May 2009

Recent media reports of employers sacking workers due to posts on social networking sites like Facebook and Twitter have revealed that employment laws regarding privacy and unfair dismissal are under new pressure in the internet age.

Making seemingly private comments on social networking sites such as Facebook and Twitter is now a sackable offence for some professions. The NSW Department of Corrective Services, for example, is threatening to sack prison officers over posts they made to a Facebook group criticising the cash-strapped State Government's plans to privatise Parklea and Cessnock prisons.

The public sector union retaliated by accusing the department of using strong-arm tactics to stifle dissent and invade the private lives of employees.

In addition, in March a Telstra employee was disciplined by the telco for comments he posted on Twitter.

So, where do employers stand?

Bronwyn Maynard, senior associate and team leader at Harmers Workplace Lawyers, said it's inevitable that developments in technology, such as the internet, will continue to raise questions about whether existing laws provide adequate protections for both employers and employees. "The challenge for courts is then to ascertain how to apply the existing laws to new scenarios that arise due to such developments," she added.    

Even prior to the internet age, 'out of hours' conduct by employees was scrutinised by employers and, in certain cases, formed the basis for dismissal. The internet age is broadening the nature of communications that employees may participate in 'out of hours'. However, Maynard said that whether such conduct justifies dismissal will depend on a range of factors.

"In particular, there must be a close connection between the employment and the conduct, the conduct must be likely to cause serious damage to the employment relationship and/or employer's interests, and must be incompatible with the employee's duty," she noted.

"Unlike the US, there are no lifestyle protection laws in Australia which aim to protect employees from being disciplined by their employer for conduct they engage in after hours. As such, there are no general protections directed specifically at maintaining employee privacy. However, employers still do not have an unfettered right to intrude into the private lives of employees," Maynard added.

Employers are urged to tread carefully, especially concerning the manner in which they collect personal information about employees and in how they respond to information about employees' out of hours conduct that they may collect.

"Employers should have certain policies in place regarding the rights and obligations of both employees as well as the employer, for example in relation to computer surveillance by employers, as well as policies regarding bullying and harassment. Ideally, employers should make it clear to employees in those policies that employees who engage in conduct in breach of those policies outside the workplace, may still face disciplinary action due to that conduct if it impacts on the employment relationship," Maynard said.

 

COMMENTS

  • by Paul McKeon, Deacons 20/05/2009 10:12:31 AM

    It's worth noting there are risks in blocking employee access to social networking too, as research last year by Deacons showed: http://www.deacons.com.au/legal-services/technology-media-telecommunications/media-releases/media-release.cfm?objid=6383

  • by Paul McKeon, Deacons 20/05/2009 10:13:52 AM

    It's worth noting there are risks in blocking employee access to social networking too, as research last year by Deacons showed: http://www.deacons.com.au/legal-services/technology-media-telecommunications/media-releases/media-release.cfm?objid=6383

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