Social Media and Employment

It has become increasingly common for Australian employers to have detailed policies regarding the use of social media. Social media use, both at work and outside of work, can give rise to allegations of bullying, harassment, and breaches of confidentiality as well as harm to an employer’s reputation. This page deals with social media and employment in Australia.

Social media policies

Many employers have formal social media policies. These may be written into employment contracts or contained in a separate document. Employer that wish to put in place these policies should ensure that all employees read and understand the policies.

Workplace social media policies typically cover three aspects of social media use:

• the use of social media at work
• social media posts that may reflect badly on the employer
• potential breaches of confidentiality.

When putting together a workplace social media policy, an employer should be sure to provide adequate guidance on the appropriate use of social media at work and outside of work, and clear procedures for dealing with contraventions of the policy.

Productivity at work

The use of social media during working hours may impact productivity. For this reason, employers may wish to ban the use of social media completely while a worker is at the office or during work hours. Alternately, an employer may wish to allow workers to access social media at work but require them to ensure that their use does not impact their productivity.

Damage to reputation

Social media posts by employees may cause damage to an employer’s reputation. This may be because an individual — who is known to be employed by the company, or who has their job listed on their social media profile — posts content that is offensive or inappropriate. An employer social media policy may therefore prohibit employees from posting offensive content on their personal social media accounts. It should also outline the consequences of doing this.

A social media post may be found to be damaging to an employer’s reputation even if it is only shared privately — for example, within a closed Messenger group. This is because such posts may easily be screenshotted and shared more widely. If such a post describes the employer, or individual staff of the employer, in derogatory terms, it may lead to adverse consequences for the author.

An employer can take action against an employee in relation to their social media use if:

• it causes damage to the employment relationship
• it contravenes their duties as an employee
• it is detrimental to the interests of the company.

Confidentiality

Social media posts about a person’s work have the potential to breach confidentiality. If an employer wants to prohibit the use of social media to post confidential material, its social media policy should explicitly prohibit this and make clear what the consequences will be if this policy is contravened.

Case law

There have been numerous cases before the Fair Work Commission involving the inappropriate use of social media by an employee. Two of these are outlined below.

Corry v Australian Council of Trade Unions [2022] FWC 288

In 2021, John Corry applied to the Fair Work Commission for unfair dismissal by the Australian Council of Trade Unions. Corry was summarily dismissed for the inappropriate use of social media. His social media posts included approving comments about violent protests against Covid restrictions and included statements such as ‘Fuck the jab’, as well as content that was viewed as homophobic and antisemitic.

The ACTU terminated Mr Corry’s employment on the basis that his social media use potentially endangered the health and safety of his colleagues, as well as reflecting poorly on its reputation as a progressive and valued-led institution.

My Corry argued that his actions did not amount to willful or deliberate behaviour inconsistent with his duties as an employee. However, The Fair Work Commission found that he had been dismissed for a valid reason and that the dismissal was not harsh, unjust or unreasonable.  

Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174

In 2018, Luke Colwell made an unfair dismissal application against International Container Terminals after being dismissed for various and wilful misconduct including breach of company policy after the company learned that Mr Colwell had sent pornographic videos to a number of colleagues via social media.

Mr Colwell argued that there was no valid reason for his dismissal, given that the video had been sent to his Facebook friends within private messages and were not sent using any work equipment. Furthermore, there had been no complaints about the messages. He argued that the appropriateness or otherwise of the messages was an issue to be resolved between him and his friends, and there was no role for their employer to play in this. He sought reinstatement.

The respondent argued that its dismissal of Colwell was justified. Firstly, it had given him the opportunity to respond to the concerns and he had chosen not to do so. Secondly, the dissemination of pornographic material was not consistent with its expectations of its employees, particularly given its current initiatives to change the dominant work culture and create a workplace that was respectful of women.

The Fair Work Commission found that Colwell was validly dismissed as there was a close connection between his employment and his behaviour. The individuals he sent the material to were his Facebook friends because of their employment and the messages may have been received and viewed during work hours. The messages amounted to a breach of his employer’s expected conduct.

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