Employees should be wary of potential recriminations for after-hours social media misconduct, warned Kathryn Dent, an employment and industrial law specialist, in a recent interview with Australasian Lawyer.
Whether employees enjoy a right to privacy on social media outside of work hours is an issue of rising concern. In a blow to employees, recent court decisions indicate there is limited legal recourse for those who face the sack due to what may be deemed inappropriate online activity.
In Malcolm Pearson v Linfox Australia, an employee was fired for repeated breaches of his company’s social media policy. The employee told the Fair Work Commission that he had initially refused to sign the company policy because:
“… Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech [sic]...”
In determining whether the employee was terminated on just grounds, Fair Work Commissioner David Gregory said it was “impractical” for Linfox to “prevent employees from damaging [its] reputation or stopping them from releasing confidential information while at work”, only to give them free rein “outside of working hours”.
Ultimately, the Commissioner decided that breaching the company’s social media policy was a valid ground for dismissal. Moreover, he found Pearson’s freedom of speech concerns were irrelevant to the hearing.
In another example, in 2013 the Federal Circuit Court declined to extend the implied right of political expression to protect the private blog of a government employee.
Michaela Banerji, a public affairs officer of the Immigration Department, was fired for criticising Australia’s detention policies using the Twitter pseudonym “LeLegale” during the course of her employment. Banerji never revealed her name or position within the government on her social media profile.
Judge Neville, who dismissed Banerji’s challenge, found the implied right of political expression only applied in a narrow set of circumstances. Regardless, he said, the right would “not provide a licence ... to breach a contract of employment”.
By extension, Sarah Joseph, Director of the Castan Centre for Human Rights Law at Monash University, commented that Banerji’s case could have repercussions for the rights and safety of government whistle-blowers:
“Such revelations would often breach employment contracts, but could be essential to maintaining government accountability and truly responsible government.”
These cases highlight the growing power that employers have over their employees’ expression of personal views and opinions, outside the workplace.
The NSW government has conceded that two COVID-19 fines being challenged in a Supreme Court test case are invalid, opening the door for more than 30,000 other people to have fines worth $30 million cancelled.