Here's how employers can address the issue of offensive (or allegedly offensive) conduct on social media
By Michael Byrnes, Partner, Swaab
A complaint is made. It's hardly a starting or novel observation that social media platforms like Twitter and Facebook are not always exemplars of courteous, respectful discussion and debate. Exchanges can often descend into insults and crude ad hominem attacks.
On occasion these exchanges will end with one of the parties threatening to "report" the other to their employer, even when the statements in issue are made from a non-work personal account and the subject matter of the exchange has no connection with the employment of either party.
A similar situation can arise when highly contentious or objectionable views are expressed by an account holder. This might result in a statement from an offended party (or someone purporting to take offence on behalf of others) that they are going to notify the account holder's employer. Sometimes this takes the form of tagging in the employer's official social media account with words to the effect, "Do the [Posts/Tweets] of [@Employee Name] reflect the views of [@Employer Name]?"
What can and should an employer do (if anything) when an issue of this kind is raised with them?
SOCIAL MEDIA POLICY AND THE LIMITS OF EMPLOYER'S PREROGATIVE
The starting point should be the employer's social media policy. What does it say about the conduct which is the subject of the complaint? For instance, it might purport to prohibit employees from engaging in offensive, insulting or discriminatory conduct when using social media. A breach of the social media policy could form the basis for disciplinary action against an employee (provided, of course, the policy is accessible and widely promulgated).
This is, however, where employers need to be careful. Many social media policies are drafted without a full appreciation of how different social media platforms function in practice and the limits of an employer's prerogative. These limits are delineated by the right of an employer to give a "lawful and reasonable direction".
While an employer will have a capacity to fully control what is posted or tweeted from one of its official accounts, its capacity to limit what employees post or tweet from their own personal,
non-work accounts is more limited. Many social media policies overreach and don't make this crucial distinction. With few exceptions, an employer does not have an unfettered right to regulate posts or tweets from an employee's personal, non-work account. The analysis in cases that have considered social media issues has been largely informed by the approach of the then Australian Industrial Relations Commission in Rose v Telstra Corporation  AIRC 1592, a decision dealing with out of hours conduct of employees.
As Ross VP (as he then was) observed in that decision:
"It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
* the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
* the conduct damages the employer's interests; or
* the conduct is incompatible with the employee's duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.
Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct. In this regard I agree with the following observation of Finn J in McManus v Scott-Charlton: 'I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified."
It's not the role of the employer to play "Social Media Police Officer", ensuring that their employees are always engaging in exemplary online behaviour. For disciplinary action to be taken, the relevant conduct must have some nexus to the interests of the employer, for instance, by causing real harm to the employer's reputation, standing, brand or workplace environment.
While the test above was formulated before social media existed in its current (almost ubiquitous) form, it nevertheless provides a sound foundation for determining whether there is a proper legal basis for taking action. There is also a nascent but quickly developing body of Fair Work Commission decisions relating to social media use.
When a social media conduct complaint or issue is raised, the way in which it should be addressed will depend upon the circumstances of the case.
There are, however, some general observations that can be made.
First, sometimes an employee's personal, non-work account will nevertheless identify their employer. A common formulation in a profile bio are words to the following effect: "A [Occupation/Position Title] with [Employer Name]. Views are my own." This is, of course, how the employer of an account holder may be readily ascertained by an aggrieved party. Employees who have a bio like this are usually having a bet each way. Such an approach begs the question - if the views have nothing to do with the employer, then why is the employer mentioned at all? With the exception of a platform where the personal and professional are inextricably connected (LinkedIn being the prime example), a specific reference to an employer makes it more difficult for an employee to cogently argue the views expressed on that account have nothing to do with their employer, and more difficult for the employer to disavow those views in managing any consequences. Employees should reflect upon whether it's necessary to do it. The social media policies of employers should address this point.
Second, and related to the observation above, if an employee makes no reference to their employer (either in their bio or the content of their account) and their employer can only be ascertained (or perhaps only guessed at) by some detective work (usually Google searches) then that weakens the argument that the conduct is connected to employment. The complainant has had to take extra steps to seek to make the connection themselves. In that regard, employers should be wary of answering a question from a complainant as to whether a particular non-work account belongs to one of their employees.
Third, even if an employee uses a non-work account that makes no reference to their employer it might contain content that is so offensive or objectionable that, if a connection was to be made, could justify disciplinary action, particularly if the content is antithetical to the proper discharge of the positon held by the employee or the values of the employer. To take an obvious example, if it was established that an employee responsible for diversity and anti-discrimination within an organisation had made a series of racist or misogynistic tweets or posts, then the fact the non-work account made no reference to their employer will likely not offer much by way of a defence.
Fourth, there is often nothing special about a dispute or argument on social media. If the neighbour of an employee rang an employer to complain the employee plays music loudly at night the employer would, with a high degree of justification, characterise the dispute as a private matter which has nothing to do with the employer and dismiss it accordingly. A similar approach can sometimes be applied in relation to social media complaints.
Finally, employers should take care not to apportion too much weight to the fact that a tweet or post has gone "viral". It's a trite but nevertheless accurate observation that the number of people outraged by a statement on social media is not necessarily an objective reflection of how inappropriate or offensive it actually is.
TIPS FOR EMPLOYERS
Some tips for employers in addressing the issue of offensive (or allegedly offensive) conduct on social media by employees on personal, non-work accounts:
1. Review your social media policy. Does it make a proper distinction between posts on official employer accounts as opposed to posts on personal employee accounts? Does it ask employees to consider the need to identify their employer on their personal account?
2. Don't jump to conclusions or engage in knee-jerk reactions. Consider all of the circumstances of any scenario carefully. Investigate the matter properly. Take informed advice.
3. Ensure any disciplinary response is proportionate. A "social media outrage" of itself is highly unlikely to be considered a valid reason for termination by the Fair Work Commission if unfair dismissal proceedings are commenced. The conduct will need to be objectively serious and, consistent with Rose v Telstra Corporation, be damaging to the interests of the employer.
4. Ensure any disciplinary action against an employee does not constitute adverse action under the Fair Work Act or breach anti-discrimination laws.
Michael Byrnes is a Partner at Swaab