Offensive posts on personal social media accounts can get you sacked – some people still don’t get it…
It is somewhat surprising that, in 2022, we still see unfair dismissal claims involving employees dismissed for offensive posts on their personal social media accounts. It is also surprising that some employers’ social media policies do not expressly deal with out-of-hours conduct.
We have a look these issues here, and conclude with some important take away points for employers.
Why are these things surprising? Because for at least 10 years (since Stutsel v Linfox Australia Pty Ltd  FWA 8444), it has been clear that employers are entitled to act upon an employee’s out of hours personal social media conduct if the conduct bears upon the employee’s employment and is contrary to the employee’s contract of employment. Employers with good social media policies would be entitled to think their message had hit home – what you post can get you sacked, even if it is posted out of hours, from your own device and on a personal social media account which does not identify you as an employee of our organisation.
However, it seems some people have missed the message. In Corry v Australian Council of Trade Unions  FWC 288, the Fair Work Commission (FWC) upheld the summary dismissal by the Australian Council of Trade Unions (ACTU) of an employee who posted highly offensive material on his personal Facebook account. The FWC found that the conduct was in breach of the ACTU’s policies, was serious misconduct and constituted a valid reason for dismissal.
The employee’s conduct that resulted in his dismissal was publishing a number of posts, around the time of the violent anti-vaccine protests in Melbourne during 2021, that the FWC held:
variously applauded violence against a police officer, mocked domestic violence, expressed racist sentiments, vilified transgender and transsexual persons and used language that was homophobic.
The FWC further found that one of the posts ‘mocks victims of domestic violence and the Black Lives Matter (BLM) campaign’ and refers ‘in a derogatory manner to the claimed promotion and normalisation of homosexuality by corporate and political interests’.
The employee also posted other material that was anti-Semitic, homophobic, transphobic, and racist.
The employee’s posts were public, but his Facebook page did not identify him as an employee of the ACTU, include any photos of him and he only had 70 ‘friends’. However, the FWC held:
the fact that an employee’s social media posts may be anonymous or limited in terms of its initial distribution may be irrelevant once the post is made publicly on a social media platform…
A right to hold and express a strongly held views does not however mean the Applicant has an unqualified right to publicly espouse views that are contrary to the interests and values of his employer.
The FWC discussed various cases involving employees dismissed for ‘out of hours’ social media posts. It reiterated that the central question to ‘establishing whether there was a valid reason for the dismissal is that of determining whether the Applicant’s out of hours social media conduct was a matter that bore upon his employment relationship and whether the conduct was contrary to his contract of employment and/or whether it constituted serious misconduct.’
Interestingly, the FWC upheld the dismissal even though the ACTU’s social media policy did not expressly deal with out-of-hours conduct and the ACTU had not afforded the employee complete procedural fairness. In this case, the FWC identified the failings in procedure as being:
- an absence of detail put to the employee as to the applicable policies and values that the conduct was said to be in breach of – that detail should have been put to the employee and was not;
- a failure to provide the employee with full detail of the allegations against him before the meeting at which the Facebook posts were put to him and his response sought; and
- a failure to provide the employee the misconduct allegations in writing after he asked for it
However, the FWC found that, even had the ACTU put the detail of the allegations to the employee in a more fulsome manner, it was highly unlikely that a different outcome would have been reached. The valid reason outweighed the failings in procedure and that the failings did not make the dismissal unfair.
Employers can take away the following important lessons from this case:
- ensure your social media policy expressly (but reasonably) applies to out-of-hours conduct which bears upon the employment;
- if relying upon detailed allegations, ensure you put them to an employee in full (and ideally in writing) before the employee is to respond to the allegations;
- ensure your allegations state not only the employee’s alleged conduct but also why you say the conduct breaches applicable policies/contractual terms – and provide copies of those policies/contractual terms at the same time;
- if an employee asks for further details of allegations, unless there is a very good reason not to do so, provide those details, ideally in writing and give the employee a fair opportunity to consider the allegations, even if this means pausing the disciplinary meeting for a reasonable time; and
- even if you have failed to afford full procedural fairness in a dismissal process, you may still be able to defend an unfair dismissal claim if the ‘valid reason’ for dismissal is strong enough.
If you require any assistance with these or other workplace law matters, please get in touch with our team.