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Stretching the boundaries of social media use

in Social Media & the Law by Carita Kazakoff on

Recent cases involving employees’ use of social media have drawn attention to the now blurry distinction between work and home life. These cases invite us to question where the line should be drawn in relation to employees’ use of social media outside of work hours.

The August 2013 decision of the Federal Circuit Court involving Michaela Banerji, a Canberra civil servant working in the public affairs section of the Federal Department of Immigration, has drawn much media attention. Ms Banerji was an avid tweeter, and under the twitter handle @LaLegale, published comments (sometimes critical) about the Australian Government’s immigration policy, the then Immigration Minister, the Prime Minister and about the practices of the company providing security services at immigration detention centres.

Ms Banerji argued, among other things, that the Department of Immigration intended to terminate her employment because of her social media use. Ms Banerji argued that restrictions placed upon her ability to make public comments amounted to breach of her “constitutional right to express political opinion”.

Judge Neville found that an unfettered freedom of political communication, of the type asserted by Ms Banerji, did not exist. The Judge said that political comments made while Ms Banerji was employed by the Department, subject to policies regarding use of social media and formally constrained by the APS Code of Conduct were not, in his view, constitutionally protected.

While Michaela Banerji’s case focuses on the actions of a public servant and raises some issues arising from the application of the APS Code of Conduct, it does highlight the difficulty in achieving balance between the personal and professional spheres.  

To what extent can comments made outside of work hours be subject to discipline by an employer?

Another case attracting media attention in 2012 involved a decision to reinstate a Linfox worker who was sacked for serious misconduct, after posting comments about various managers on his facebook page.

The employee, Mr Stutsel, was found to have made offensive and racially discriminatory comments on his facebook page about a colleague at work. Several of his facebook friends, who were also Linfox employees, joined the conversation and added comments which were equally offensive and included sexually discriminatory remarks about another manager. Relevantly, Mr Stutsel’s profile photo was a picture of a Linfox truck. The comments were eventually seen by Linfox managers and Mr Stutsel was terminated.

Fair Work Australia deemed the dismissal unfair, and the Commissioner’s decision was upheld on appeal to the Full Bench.

A key issue in this case was that at the time of the termination, Linfox did not have a policy governing or regulating employees' use of social media. It was also relevant that other employees had not been disciplined for comments made on the site. The Commissioner accepted Mr Stutsel’s evidence that he was a social media novice, who did not establish his own Facebook page and did not understand how to utilise Facebook’s privacy settings. On appeal, the Full Bench warned that with increased use and understanding of social media in the community, as well as broader adoption of employer policies on social media, a claim of ignorance about social media by an older worker might be viewed differently in future.

These cases exemplify how important it is for employers to ensure that any obligations around employees’ use of social media is well understood by their workers. Employees should maximise the privacy settings on their social media accounts, delete any inappropriate comments and learn how to remove or report offensive material.

Unions and employees should be involved in discussions around the adoption of social media policies, or negotiation of clauses in enterprise agreements, to ensure that the boundaries are clear and that the expectations are fair, given the nature of the workplace. This is also an opportunity to minimise the potential intrusion into employees’ private lives and reduce any unreasonable regulation of out of hours conduct.

Slater and Gordon’s years of experience mean we can offer you a simple, step-by-step guide to the unfair dismissal process, and a one-stop shop to finalise your claim.

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