Australian courts generally consider two elements in cases of social media misconduct. Firstly, whether your conduct on Facebook can be connected back to your employer, and secondly, whether it caused damage to your employment relationship.
Fair Work and social media
The Fair Work Commission (FWC) has often found that conduct on your social media page can be connected to your employer. Defences such as the fact your page was private, or that you didn’t mention your employer, are not strong in the event of a disciplinary matter. In a recent case, a credit company employee’s Facebook page listed his employer as Jurassic Park and his position as a dinosaur wrangler. The employee posted damaging statements on the Facebook page of a third company that worked closely with his employer.
Despite the fact he did not identify himself as an employee of his company, he could be identified through photos and his name, and the Commission found that it was reasonable for his employer to find that his conduct could damage their business interests. (Little v Credit Corp Group Limited [2013] FWC 9642).
On a practical level, the fact someone has seen and complained about your conduct on social media is indication enough that your information isn’t private. The FWC has also considered factors such as whether you have colleagues or clients as friends and whether you post information about your work generally to show that your cyber conduct can be linked back to your work.
The second element the FWC will consider is whether your conduct on social media was damaging to the employment relationship. This will include obvious misconduct, such as writing derogatory or inappropriate comments about your colleagues, students or your workplace. The Commission has also found that comments on social media that can be damaging to the business interests of the employer can damage the employment relationship. For example, claims that an employer was corrupt on an employee’s personal MySpace page were found to be a valid reason for termination, despite the employee not mentioning the name of the employer. This was because it could reasonably be seen to have damaged the employer’s reputation and therefore business interests. (Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544).
This is a low threshold test – your employer doesn’t need to show that their interests were damaged, just that they could be damaged by the conduct.
Teachers and support staff beware
For teachers and support staff in schools, this is problematic. For employees in faith-based schools, posts on your personal Facebook page which conflict with the values or ethos of the school may be sufficient grounds for a warning. This can extend to photographs that you publish on social media sites. In addition, teachers are held to a high public standard, meaning comments about funny things you have heard students say or do may be seen as inappropriate. Recent disciplinary matters the IEU has assisted on have involved humorous comments about daily life as a teacher and negative comments about a colleague made in a private Facebook chat but witnessed by a co-worker.
Several cases from Queensland have focused on child protection issues arising from Facebook or social media conduct. Being ‘friends’ with students on social media has been considered an inappropriate personal relationship and may lead to a child protection investigation. This extends to former students, especially if they have only recently ceased being your student or if they are still of school age.
Take care as you share
If you choose to have a social media profile, be cautious about what you share and who you share it with. Below are some tips about how to remain cyber-savvy. The IEU runs a PIP: Anti-Social Media going through this information and more, so keep an eye out if it comes near you.