David Davies

Social media and the workplace. But what about my freedom of speech?

David Davies

26 April 2016

Employment Disputes

Barely a week goes by that we don’t hear about an employee getting into trouble for posting comments on social media. In the last month alone we have heard about a teacher who posted remarks critical of her school’s curriculum, a credit union employee who posted a racially charged message and, just last week, a Centrelink employee who called clients ‘junkies and spastics’ and said some of his fellow staff were ‘utterly useless’ on a social media platform.[1]

A typical defence from employees seeking to justify this conduct is ‘I wasn’t at work when I posted that comment’ or, even more commonly, ‘You have no right to fetter my freedom of speech!’. This argument is akin to the statement that ‘what happens on tour stays on tour’. But, in light of recent decisions, does this defence stand up to scrutiny? The answer is usually no.

Is there a right to free speech in Australian workplaces?

Many Australians may believe that, because we live in a liberal democracy, certain personal freedoms – including free speech – are a given. Many Australians might also be familiar with the US Constitution and specifically the First Amendment which states in part ‘Congress shall make no law … abridging the freedom of speech, or of the press’ and, I am guessing, believe that here in Australia we enjoy similar protections as citizens. Well let’s get that out of the way right now. The Australian Constitution does not have an explicit First Amendment type statement enshrining the protection of free speech.

Does what I say/do outside of work actually matter?

The answer is, it depends. We live in a very different world from the one which existed ten years ago. Many businesses rely on electronic communication and social media for a variety of purposes, including marketing. In that context, the idea that we can keep our professional and personal lives separate is harder to manage than it used to be because social media increasingly blurs the lines between our personal and professional lives. Just as an employee’s behaviour at a work Christmas party may land them in hot water, so too can their behaviour online, if it reflects badly on their employer.

Recent decisions [2] establish that employers may well be entitled to take disciplinary action against employees who, even outside of working hours, injure, or even potentially injure, the employer by posting comments on social media that reflect negatively on the employer’s business. As Deputy President Sams of the Fair Work Commission has stated:

‘It was inevitable with the seismic shift to the phenomena of social media as a means of widespread instantaneous communication, that it would lead to new issues in the workplace. These include the extent of the use of social media while at work, the content of such communications and whether they be work or non-work related. I hasten to add, the applicant is perfectly entitled to hold views about any organisation and to express such views in the public domain; but he is not entitled to do so in a manner which injures his employer’s business relationship with that organisation’ [3].

So if the employer can establish a sufficient connection between the conduct of the employee on social media and the workplace, then this notion of an unfettered ‘freedom of speech’ in Australian workplaces may not exist. Employees do not have (and arguably never have had) an unfettered right to post whatever they want without consequence.

The importance of a policy framework

But before employers breathe a sigh of relief and say to themselves ‘well here is at least one area of employment law where things seem reasonably straight forward’, it is still important to ensure that the level of punishment through disciplinary action is suited to the conduct and all the circumstances. When considering this, courts and tribunals will look to see if the employer established any rules about the use of social media and what effort it made to communicate those rules. Employers who attempt to take disciplinary action against a no policy background have found the task considerably more difficult. In fact, there is an expectation that employers, and particularly large employers, will have at least a simple statement in their policies or code of conduct. To have no policy concerning social media has been described by the Fair Work Commission as ‘not sufficient in an electronic age’ [4].

After the event, employers frequently cite that inappropriate posting on social media is against their ‘values’. However, if these values are so significant as to potentially cost someone their job, shouldn’t the employer have taken the trouble to at least state their values in a simple policy statement? Employers might say in reply: why do we have to always state the obvious? Do we really have to tell our employees that they cannot make inappropriate comments on social media where there is a connection with the workplace? If you are before the Fair Work Commission responding to a claim of unfairness, the answer is yes. Having a social media policy statement is a legitimate (and necessary) practice to protect the reputation and the security of a business and all of its stakeholders.

Your policy should say that you are entitled to be concerned with and, if necessary, take disciplinary action in connection with conduct on social media. Communicate the policy well and you should have fewer workplace difficulties.

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[1] Starr v Department of Human Services [2016] FWC 1460
[2] Linfox Australia Pty Ltd v Glen Stutsel [2013] FWC 9642, Little v Credit Corp Group Limited [2013] FWC 9642, Banjeri v Bowles [2013] FCCA 1052.
[3] Little v Credit Corp Group Limited [2013] FWC 9642
[4] Linfox Australia Pty Ltd v Glen Stutsel [2011] FWA 8444