As COVID-19 blurs boundaries between work and personal time, where is the line for teachers’ use of social media? Sandy Noakes of Western Sydney University School of Law explores the issues.
Huge changes to our social and working lives in 2020 mean most of us have spent considerable time online. Many of us have maintained connections with others through social media; for example, joining groups, supporting causes, uploading funny videos, and sharing recipes.
Teachers’ professional obligations have always extended beyond the school grounds. However, social media obscures the distinction between the professional and the personal even further.
Increasingly, employers want to implement policies to control what employees say and do on social media to protect their brand and reputation. Schools are no exception.
In the high-profile Israel Folau case, Rugby Australia argued that its rules relating to social media use were lawful and reasonable, and Folau’s refusal to observe them was a breach of his employment contract. High-profile employees, such as Folau, can be obliged to follow social media policies because they are “brand ambassadors”.
But are teachers 'brand ambassadors' for their schools? Does social media mean they are never off duty, and can never be themselves on their own time on social media?
Hold the trash talk
Put simply, “trash talking” your employer, your students or your colleagues on any social media platform is unacceptable, as this breaches your duty of fidelity to your employer. The law is clear that an employer can control inappropriate conduct on social media towards colleagues or students, even if you do it away from work.
Not only can the employer be held legally liable for your behaviour, it may constitute workplace bullying or harassment. It is also a breach of your duty of care to students.
The grey area
There is, however, another category of behaviour: where a teacher engages in conduct on social media that has no direct connection to their employment, but may embarrass the employer if their connection to the employer is known.
For example, in 2018, The Age reported that Geelong Grammar investigated one of its teachers for participating in a private anti-vaccination chat group. The school’s principal reassured parents there was no evidence that the teacher had shared her views with students.
In short, the teacher was investigated for participating in this online group outside of school hours.
What about a personal life?
Before social media, employment law consistently reinforced that all employees have a right to a personal life. But how far that right extends is now in question, given so many of us conduct our personal lives in such a public way on social media.
Australia’s privacy legislation does not protect teachers from employers examining their behaviour on social media.
What about free speech?
The ability to dissent, to argue, and to comment on our institutions and systems sets democratic societies apart from autocratic or fascist regimes. Freedom of speech and its curtailment are recognised by the Universal Declaration of Human Rights.
However, freedom of speech in Australia is not a constitutional right and Australian law offers less protection for freedom of expression than the law in the UK or the United States. Australia has freedom of political communication, which is implied in the Constitution, but it’s not absolute.
What about the Fair Work Act?
If a teacher is disciplined for making political or religious comments on social media, they may seek a remedy under anti-discrimination legislation.
A popular avenue for employees has become the General Protections provisions of the Fair Work Act. However, these have limited application to teachers in religious schools. The 2014 High Court case of CFMEU v BHP Coal shows that an employer can argue the reason an employee was disciplined was not for holding particular beliefs, but for the way they were expressed.
In this case, an employee was dismissed for waving a sign that was deemed offensive at people who crossed a picket line. The employee claimed he was dismissed for participating in a lawful picket, but BHP successfully argued the employee was dismissed because the expression on the sign contravened workplace policies requiring workers to be respectful and courteous towards each other.
It is possible this same argument could be made by an employer who wanted to discipline a teacher for expressing their political or religious views on social media in a provocative or unconventional way.
Is your social media your boss’s business?
Some schools make no distinction in their social media policies between work and non-work behaviour. Others make extremely broad directions that teachers not behave on social media in a way that might harm the school’s reputation.
Still others require teachers to exercise control over what their family and friends post about them, which seems an almost impossible task. And some require teachers to report any negative comment about the school that they see on social media. Most concerning, however, is the fact that nearly all policies state that a teacher could be disciplined for breaching the policy.
What employers have not fully considered is the legal status of policies that try to control what teachers do on social media in their own time and beyond their professional obligations.
In Australia, an employer can give directions through workplace policies, and employees have an obligation to follow them. However, the courts state that there are limited situations in which a workplace policy can control what an employee does in their personal time.
If social media policies intrude too far into an employee’s personal life, or lack any rational connection to an employee’s duties, they are harder to enforce. Most employees are not paid to be 'brand ambassadors' in their personal time, and this means that any social media policy requiring them to do so may be open to challenge.
It is possible to argue that an employer’s social media policy that is not directly related to the teacher’s employment is not a lawful and reasonable direction. And employers need to consider tailoring policies so they allow teachers a personal life, even one that is conducted on social media.
More information: Sandra Noakes and Sarah Hook (Western Sydney University, School of Law), ‘The blurred line between the professional and the personal: Regulation of teacher behaviour on social media’ Australian Journal of Education (29 June 2020): https://doi.org/10.1177/0004944120924889