Can I fire an employee for their social media posts?

In the age of digitization, HR needs to be extra vigilant when it comes to online activity

Can I fire an employee for their social media posts?

In 2010, when social media was still largely in its infancy, it was common practice for people to announce in their ‘about me’ sections that their views were ‘expressly their own’. The exercise was meant as a safeguard that removed that person from any liability to their workplace code of ethics when they posted on social media.

In 2011, in one of Australia’s earliest case of dismissal through social media posts, a Linfox employee made several ‘inappropriate’ comments on social media about two of his managers. The FWA found the dismissal was unfair and the employee was to be reinstated, and paid compensation for lost wages – and a part of their reasoning was the lack of a company social media policy.

These days, business social media policies have evolved and become standard in most contracts and a clear message from employers has been established - what you post on social media, even if it’s out of hours and not relevant to the workplace, can get you fired. This is even relevant at executive levels – earlier this month, make-up giant, Estee Lauder fired executive group president, John Demsey, a 17-year veteran of the company, over an Instagram post that contained the ‘n-word’. Estee Lauder said: “Demsey’s remarks do not reflect the values of the company.”

Last month in Australia, the Fair Work Commission (FWC) upheld the summary dismissal by the Australian Council of Trade Unions (ACTU), of an employee who posted offensive material on his personal Facebook account outside of work hours. The dismissal was upheld even though ACTU’s social media policy didn’t expressly deal with out-of-hours conduct and the ACTU had not afforded the employee complete procedural fairness.

The employee’s Facebook page did not identify him as an employee of the ACTU or include any photos of him, and he only had 70 ‘friends’. During Melbourne’s anti-mandate protests, the employee published several posts that seemingly applauded violence against police officers, mocked domestic violence and the ‘Black Lives Matter’ campaign and referred in a derogatory manner to the normalisation of homosexuality by corporate and political interests. The employee also posted other material that was anti-Semitic, homophobic, transphobic, and racist.

The FWC held that while the employees’ posts were anonymous and limited in terms of distribution, because the post was made publicly, that was irrelevant and, a right to hold and express strongly held views does not mean the employee had the right to publicly espouse views that are contrary to the interests and values of his employer.

While it may be unconscionable to some that in 2022 we still see claims involving employees being dismissed for offensive posts on their personal social media accounts, employers can take away the following important lessons from this case, make sure that employees are afforded procedural fairness when their employment is terminated – even if you have failed to afford full procedural fairness in a dismissal process, you may still be able to defend an unfair dismissal claim if the 'valid reason' for dismissal is strong enough.

Make sure that employees are always notified of any policy that effects their employment and that they are given training in relation to that policy, and finally, ensure your social media policy expressly applies to out-of-hours conduct which bears upon the employment.

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