Legal: Twittering towards dismissal?

by HCA29 Jul 2009

In a digital age where employees are regularly engaging in online communication via social networking sites such as Facebook and Twitter, employment laws and company policies are under increasing pressure to manage employee conduct in the changing workplace. Facebook alone has over 200 million users worldwide and each user has an average of 120 friends. The potential for damage from misuse of such powerful communication tools is extraordinary and is creating another dimension for employers to consider in managing employee conduct.

Facebook Posts and Twittering: A sackable offence?

Whether disciplinary action is appropriate is a question of fact and degree based on each case but circumstances where online use of social media may result in disciplinary action include:

  • use of the sites to bully, harass, discriminate against or vilify work colleagues;
  • use of the sites as a forum to publicise workplace disputes;
  • posting of defamatory content on such sites;
  • disclosure of confidential information or intellectual property on the sites;
  • or lack of productivity due to excessive use of the sites during work hours.

Whether the posts were made by the employee from a work computer or during work hours is not critical to whether an employee can be disciplined for inappropriate conduct. Even before the internet age, there were circumstances where employee conduct outside of work could be scrutinised by employers. Social networking sites simply broaden the range of communications employees can participate in and be disciplined for if they step over the line.

But what is the line? How far can employers go to discipline employees for posts they make in their private time?

This depends largely on the relevant contract of employment as well as policies and procedures the employer has in place. If the employee's posts reveal confidential information about the employer or make discriminatory comments which are referable back to the employer or workplace, existing contractual provisions, policies or procedures may anticipate disciplinary action for this type of conduct.

However employers are encouraged for their own protection to go further and create specific policies relating to social media so the "line" which must not be crossed is clearly outlined for employees. This will mean any termination of employment flowing from a breach of these specific policies is less likely to be considered to be harsh, unjust or unreasonable if challenged.

What should employers do?

Develop Social Media Policy

As a matter of best practice, it is recommended employers implement specific provisions and policies which explicitly state what conduct or social media posts are prohibited. Specifically, such policies should:

  1. Be clear about what posts are prohibited, for example:posts mentioning the employer's name, affairs or confidential yinformationposts which are defamatoryy yposts which may otherwise be construed as discriminatory or "bullying".
  2. Make it clear employees can only speak on behalf of the organisation if they have the authority to do so.
  3. Contain specific provisions on confidential information and intellectual property such as trade secrets.
  4. Explicitly state employees who engage in breach of policies even outside the workplace, may be liable to face disciplinary action.
  5. Clearly explain failure to comply with the policy may result in disciplinary action being taken against employees up to and including termination of employment.

Employees should also be made aware that in a court scenario, production of such material posted may be requested under a subpoena and has been used in Australian Courts. A recent example was in the Australian Industrial Relations Commission case of Lukazewski v Capone's Pizzeria Kyneton (which is yet to be finally determined) where the employee indicated he was "p****d off" on Facebook after being called in to work when two other staff members had called in sick.

Distribute and consistently enforce policy

The Social Media Policy must be distributed to all employees and consistently enforced when breaches occur. Since the conduct the policies are dealing with is so public, evidence of inconsistent enforcement will be easily accessible and may be used as the basis of unfair dismissal proceedings by disgruntled employees whose employment is terminated for breach of the policy.

About the author

Fay Calderone is a Senior Associate with MatthewsFolbigg Lawyers. For more information call: (02) 9806 7412 or e-mail: