sat down with McDonald Murholme Senior Associate Andrew Jewell to discuss freedom of expression and social media policies in the military environment.
“In Australia you are entitled to express your political opinion publicly, however there may be different rules that apply to the military and some government sectors,” Jewell says.
“It may seem strange to some that Shindy was punished for her political opinion given the protections of the Fair Work Act 2009 (Cth),”
However, he says it is important to note that these protections may not apply in the same way to senior Government or military officials, as political comments by government or military officials may be considered misconduct that is not inconsistent with the Fair Work Act 2009
Jewell says the following elements should be taken into account before taking disciplinary action against an employee who has made comments on social media:
- the nature of the comments made and the intention behind them;
- when the comments were made;
- who had access to view the comments;
- the extent to which an individual or company is identified in the comment;
- the provisions of any company code of conduct; contract of employment and any company guidelines.
Australian law recognises the freedom of information, opinion and expression, however employees may face consequences for any comments made that may be considered unlawful.
“Companies are concerned with the prevalence of social media and its 24/7 nature and thus may include social media guidelines in an employee’s contract or company code of conduct,” Mr Jewell says.
“Setting maximum privacy settings on social media pages may be insufficient to prevent disciplinary action, as there is no recognised right to privacy in Australian law.
Jewell says employees may still face consequences for comments made outside of work hours, or outside of the workplace or seemingly in a private setting.
He says the public sector is in a unique position as the sheer size of government organisations means it is more difficult to implement a social media policy that covers all situations.
“Smaller private organisations are better equipped to consider the effect of social media on their business and better equipped to more rapidly respond due to a smaller management team and less red-tape.”
He says government organisations are more likely to lag behind private sector companies in terms of modern social media policies and usage of social media in the workplace. Indeed, a spokesman for Defence told Fairfax Media that the use of social media by the navy was "continuing to develop".
He advises companies and government agencies to frequently revise their social media policies and educate employees on their rights and responsibilities when using social media.
The use of social media in government sectors has come under the microscope after the Twitter account of the Australian navy’s most senior Muslim officer, Mona Shindy, was shut down after publishing her personal political views.