Have you ever come home from a bad day at work and complained to your friends over drinks or dinner? Surely, we’re all guilty of it. But what about when an employee does it on social media – could ‘bagging’ your workplace and clients be a sackable offence?

When personal or at-home conduct occurs outside of work hours, it will not be an employer’s concern unless it is somehow connected to the employment relationship. However, with social media now such a prominent, amplified and open form of conversation, many people publicly complain about their workplace, boss or clients online.

So, what does this mean for employers?

Well, given the importance of a business’ online reputation and image, employees may be dismissed for comments made outside of work hours (or outside of the workplace) when those comments are critical of an employer, its management or clients.

The question is: to what extent can employers dictate to their workers what they can and can’t say online? Which personal views are permissible for an employee to express versus ones that are not?

Fair Work Commission further clarifies dismissal laws for online ‘private’ conduct

This evolving area of employee management was recently dealt with in an interesting Fair Work Commission (Commission) decision – Starr v Department of Human Services [2016] FWC 1460 (29 March 2016)).

In October 2015, a Centrelink customer service officer who had been with the Department of Human Services for more than 20 years was dismissed for social media posts in which he:

described customers as “spastics” and “whingeing junkies”;
stated a large proportion of Centrelink’s clients who seek exceptions from having to look for work on medical grounds were disingenuous;
admitted he was “embarrassed” to work at the department;
opined Centrelink’s processing times were “utterly disgraceful”;
allegedly criticised the government of the day; and
otherwise brought Centrelink’s reputation into disrepute.

A misconduct investigation found he breached s 13 of the Public Service Act 1999 (Cth), as well as the Australian Public Service (APS) values and code of conduct, over a three-year period when he posted negative and inappropriate posts about the department and its customers on social media platforms.

Under Centrelink’s policies, employees had the right to make public comments, but only if they were made in their private capacity as members of the community rather than employees. Any criticism of the government or a department could not bring the APS into disrepute or lead the public to suspect that the employee was unable to perform their duties impartially and apolitically.

The Commission found that Centrelink had legitimate grounds to dismiss the officer for his posts.

However, overall, the Commission’s Harcher VP considered Centrelink’s actions in dismissing the worker for his actions were “harsh” because of mitigating factors (such as the length and quality of his service) and that the punishment (dismissal) was disproportionate to the gravity of the officer’s misconduct. Harcher VP noted the posts were made impulsively rather than with any intent to damage the department’s reputation, bore no relationship to his actual work performance and caused no actual detriment to the department.

Hatcher VP reinstated Mr Starr but refused to make orders for lost pay, finding the employee’s financial loss suffered post-dismissal operated as a suitable sanction for his misconduct. Harcher VP claimed his decision would also serve as a signal to Mr Starr, other employees of the Department and the public that conduct of the type he engaged in is unacceptable and not condoned by the Commission.

Given, however, Mr Starr now has his job back, it is hard to see how the Commission could reasonably claim it does not condone and forgive such ‘digs’ by employees toward clients of their employer. The decision is all the more curious considering the restriction (Code of Conduct requirements) placed on senior members of the Commission about making public comments or expressing views not ‘authorised’ by the President. There appears to be a whiff of hypocrisy in decisions such as this; it’s unfair and ‘harsh’ for fellow-government department Centrelink to dismiss an employee for damaging its reputation by calling benefits-dependent clients “spastics” and “whingeing junkies”, yet the same Commission does not even permit its senior Members to participate in any public discourse for fear of reputational damage.

HR Considerations

It is easy to imagine how an employee’s social media criticism about an employer, or their frustrations with a manager, client or process could contain material which could bring the organisation into disrepute when viewed by the wider public. In the case above, what may have begun as a thoughtless ‘gripe’ about Centrelink within social media between two strangers, quickly escalated into what could be seen as an ‘insider’s account’ of the misleading information presented to the public on processing times, and what Centrelink employees really feel about those needy customers they serve. The resultant risk of reputational damage was huge.

As ever, it is possible for an employer to dismiss an employee for comments made on social media provided it has the right tools in place. This includes a well-drafted policy, thorough investigation into the conduct concerned, procedural fairness for the employee and a disciplinary sanction that has taken mitigating effects (such as contrition, length of service, any personal circumstances, etc) into account.

The reasonableness of dismissal as a disciplinary sanction will depend on factors such as:

the nature of comments;
the intention behind publishing the comments;
who had access to view the comments;
the extent to which an individual or company is identified in the comment;
the provisions and applicability of any company code of conduct;
employment contract considerations/obligations; and/or
any company guidelines/policies.

Go to www.workplacewizards.com.au to read more blogs on this issue, or to engage Workplace Wizards for specialist dismissal-related advice, clear and comprehensive policies or an incident investigation.