Can/should you be dismissed for being ‘offensive’ on social media without any connection to your employment?
In recent years sportspeople, celebrities and media personalities have come under increasing scrutiny for their conduct outside of work hours with their employment being prejudiced, and even terminated, following late-night misdemeanours.
Think, for example, footballers Wayne Carey, Ben Cousins, Heath Shaw and Jake Carlisle, cricketer Andrew Symonds, swimmer Nick D’Arcy and ‘celebrities’ Kate Moss and Axle Whitehead.
Traditionally, this behaviour would have been viewed as unconnected to the employment relationship. Now, however, in excess of sore heads and bruised egos, such late-night misdemeanours can result in sanction or grounds for dismissal for those ‘playing up’.
An increased range of behaviour is now being found to be connected to the employment relationship, and applying to ‘regular’ workers who are not celebrities or otherwise in the public eye. The consequence of this is employers being held vicariously liable for the conduct of its employees outside of the workplace, outside of working hours and seemingly completely out of its control. On the employee side, regular workers are now being dismissed for their private, and non-work related conduct. Is this fair?
the evolving nature of ‘out of hours’ conduct being found to be connected to the employment relationship; the vicarious liability implications for employers; and the recent distinctions courts and tribunals have drawn between ‘out of hours’ conduct connected to the employment relationship (as opposed to more private and personal conduct)
‘where is the line’ for employees?
When will inappropriate conduct by an employee be sufficient to be connected with their employment in order to constitute a ‘work-related issue’? This is important given the increase of employee socialising, social networking sites and expanding privacy considerations generally applicable to protect individuals online.
The Blogger Strikes Back
The media this week reports an interesting twist regarding employee online conduct which tests the limits to which employers may regulate and discipline out of hours conduct that is unconnected with their work.
Michael Nolan was dismissed by his employer, Meriton Apartments, after commenting on the media personality Clementine Ford’s public Facebook page. He inappropriately called her a “slut”. Ford is a famous feminist columnist with close to 80,000 Facebook followers, who actively speaks out against abuse that she receives online.
Nolan, whose Facebook account listed him as a Meriton employee, made that comment on his private time, out of work hours, and without any specific reference to his work, Meriton clients or his colleagues. Following Nolan’s comment, Ford reported Nolan to his employer, demanding something be done. In response, Meriton conducted a two-day investigation into the issue and then dismissed Nolan.
Relevant case law to date has established the only way an employer will avoid an ‘unfair dismissal’ finding when dismissing an employee for out-of-work private social media messages is to establish a firm ‘nexus’ (connection) with the employer, or the employment relationship. See, for example,nLittle v Credit Corp Group Limited (“Little”), Stutsel v Linfox, O’Keefe v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys, Fitzgerald v Smith T/A Escape Hair Design and Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota.
Purely private conversations – with no reference to, or connection back, to the workplace – will likely be an unreasonable encroaching of the employer into the employee’s ‘private’ lives and personal affairs and be an unfair dismissal as a result.
Given it seems there is no relevant ‘nexus’ between the private view Mr Nolan has towards Ms Ford, and his activities as an employee of Meriton, some may argue that Nolan’s dismissal is an unfair dismissal. What do you think? To this end it is worth noting the view expressed by the FWC in Little that although an employee is “perfectly entitled to have his personal opinions, he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the company and/or damage its reputation and viability.”
Courts and tribunals seem willing to find employers vicariously liable for the out of hours conduct of employees by finding that an employer has not done all that was reasonably practicable to prevent inappropriate work conduct from developing into more serious ‘out of hours’ situations (see, for example, Lee v Smith & Ors, Leslie v Graham and South Pacific Resort Hotels Pty Ltd v Trainor).
By contrast, courts and tribunals appear more reluctant to find that employers can discipline employees for inappropriate out of work conduct to set an example to others and to improve general standards of employee behaviour. As summed up in GrainCorp Operations Limited and anor v Markham “only in exceptional circumstances will an employer be given an extended right of supervision over the private activities of employees.”. Noting this decision was almost 14 years ago, have courts and tribunals become much more willing to permit employers to classify and censor their employees online activities, upholding a dismissal of an employee if he/she does not ‘tow the company line’?
Would it have been more appropriate for Meriton to respond to Ms Ford on this issue (or its position generally) to say “what an employee does online, unconnected to our workplace, is not something we can censor and take action on”? Or, have they responded appropriately? What position would Meriton clients and potential guests take about this being an issue the Meriton Group should act on? Further, is the Group (or employers generally) able to insist upon employees never expressing poor, inappropriate or offensive views on any of their social media interactions, or face dismissal as a result? Who decides then what is an ‘appropriate’ view to hold?
Where should the line be drawn? Over to you…