To post, or not to post? Out-of-hours social media activity for public service employees and employers

Introduction

Social media is a fundamental tool used in individuals’ personal and professional lives. Considering the level of social interaction on online platforms, it is unsurprising that there has been an increase in employee disciplinary action, including dismissals, as a result of conduct on social media. What is surprising is that many employers still do not have social media policies that adequately deal with out of hours conduct, even within the public service. This article provides a brief overview of social media standards for the public service, conduct during and outside of work hours that may result in disciplinary action, risks for public service employers with respect to unfair dismissal claims, and recommendations for public service employees and employers to mitigate risks online.

Social media standards for public servants

While all employees must comply with their employers’ policies and codes of conduct, as representatives of the executive branch of Government and its functions, public servants are held to a higher standard. Society’s faith in the proper administration of the Executive Government is central to public perception of responsible government in a representative democracy such as Australia. Whether a public servant is employed by local, state or federal government, employees are obligated to act in accordance with their responsibilities under workplace policies, codes of conduct, and legislation including: the Fair Work Act 2009 (Cth), State Industrial Relations Acts, and Public Service Acts.

The Australian Public Service Commission’s publication, ‘Social media: Guidance for Australian Public Service Employees and Agencies’ (APS Guidance), outlines that while Australian Public Service (APS) employees have a right to personal and political expression on social media, that right must be balanced with the obligations of APS employment. The APS Guidance sets clear expectations that online conduct of APS employees must uphold APS values, including that ‘the APS is apolitical, performing its functions in an impartial and professional manner’.

When is conduct considered at ‘work’?

The Fair Work Commission (FWC) regularly hears matters involving allegations of bullying or sexual harassment, which often have the potential to cause reputational damage to the employer. Social media is increasingly being used as a vehicle to commit or continue workplace bullying and sexual harassment outside of the physical workplace. The FWC considered in Bowker & Ors v DP World Melbourne Ltd T/A DP World & Ors, whether the two applicant employees were bullied by way of a post on social media.[1] Even as far back in 2015, the FWC considered that social media conduct which involves bullying is not limited to when employees are physically at work but rather, that the employee will be considered at work whenever they perform work, regardless of the location or time the work is performed. Where offending social media posts constitute bullying conduct, even if the posts were made when the complainants were not at work, the conduct can be deemed to continue for as long as the posts remain on the platform. It follows that a worker need not necessarily be at work at the time a post is made, as the post and any associated comments can be later viewed during work hours.

Employees and employers should be mindful of the reputational damage an improper, offensive or political post on social media could have on an organisation where it can be perceived as representative of the organisation’s views and values.

Conduct outside of work hours

Conduct outside of work hours which has a sufficient nexus to an individual’s employment, can be relied upon to ensure the employee upholds the workplace’s legislative obligations and internal policies. To consider whether there is a “sufficient nexus” between the conduct and the employment, the decision-maker may refer to the following factors as outlined in the preeminent judgment of Rose v Telstra:

• when viewed, objectively, is the conduct likely to cause serious damage to the relationship between the employer and the employee;
• is the conduct likely to cause damage to the employer’s interests (business or reputation); or
• is the conduct incompatible with the employee’s duty as an employee.[2]

It is now settled law that an employer can discipline an employee for inappropriate social media activity where it meets the requisite test of having a ‘sufficient nexus’ to their employment.[3]

Whether an employee’s expression of a political opinion online can be misconduct capable of disciplinary action by the employer will turn on the facts of each case. The High Court case of Comcare v Banerji[4] (Banerji Case) considered whether an APS employee’s expression of political opinion was capable of disciplinary action. Ms Banerji posted more than 9,000 tweets under the Twitter handle ‘@LaLegale’ that were critical of the former Department of Immigration and Citizenship (Department). The Department became aware of the tweets after two other employees alleged Ms Banerji was inappropriately using social media in contravention of the APS Code of Conduct. The Department subsequently terminated Ms Banerji’s employment on the basis that she had breached the Public Service Act 1999 (Cth) and the APS Code of Conduct. The High Court unanimously held that the impugned provisions had a purpose consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance of an apolitical public service.

The Banerji Case has not only been referred to as an authority in subsequent judgments, but it also has been topic of many academic conversations. For instance, in their article, ‘Balancing public servants’ responsibilities with the implied freedom of political communication: What can we learn from Banerji?’, Dr Morris and Professor Sorial analyse the facts and legal reasoning behind the Banerji Case as well providing commentary on the boundaries of freedom of political communication for public servants.[5]

Unfair dismissal claims and employer enforcement risks

Employers must understand they risk unfair dismissal claims where they fail to sufficiently balance an employee’s obligations to the employer against their workplace rights. In Starr v Department of Human Services,[6] the FWC held that the Department of Human Services (Centrelink), had unfairly dismissed Mr Starr for breaching the relevant APS Code of Conduct in relation to two online discussion forums where he had made disparaging comments about Centrelink staff. Mr Starr had been a frontline Centrelink employee for 21 years, and while there was evidence of Mr Starr receiving the social media policy, Mr Starr admitted that he had not read it. Consequently, he was not aware that he was not permitted to publicly criticise the government or government policy. Throughout the workplace investigation, Mr Starr maintained that he was sincerely remorseful, and he accepted that he should be sanctioned for his behaviour but not dismissed. The FWC held that the dismissal was harsh considering the mitigating factors of the case.

In Singh v Aerocare Flight Support Pty Ltd,[7] the FWC also found that the employee had been unfairly dismissed due to online conduct where the employer failed to consider mitigating factors, but also, alternative actions to dismissal.

These two cases highlight that while having a robust social media policy is beneficial for employers in disciplinary actions, the policy cannot be used to circumvent the employer’s duty to conduct a procedurally fair and thorough investigation process with reference to the employee’s workplace rights.

Conclusion

Public servants must be aware of the significantly greater obligation to ensure their social media conduct reflects the impartiality and apolitical nature of the public service. Employers need to be aware that employee conduct on social media can bear upon their obligations to other employees, the reputation of the organisation, and is not outside of the scope of disciplinary action.

Employers must have a well drafted social media policy that clearly defines social media, what are acceptable and unacceptable behaviours, and incorporates other workplace policies such as anti-bullying, anti-discrimination and sexual harassment policies. The policy should clearly set out the consequences for breaching the social media policy. Employers must also ensure that employees are not only aware of their social media policy but have read it, understood it, agree to abide by it, and understand that it will be enforced for all staff. While social media is a useful tool, it is important employers and employees both understand the risks that accompany posting controversial material online.

Gadens has extensive experience in advising and assisting employers on various matters, including workplace investigations involving allegations of social media misconduct and representing employers in industrial disputes, as well as providing expert and tailored legal advice to employers to meet their obligations.

To enquire how Gadens may be able to assist, please contact Jonathon Hadley, who leads the employment relations team in Brisbane, via: jonathon.hadley@gadens.com or 07 3231 1653.

If you found this insight article useful and you would like to subscribe to Gadens’ updates, click here.

Authored by:

Jonathon Hadley, Partner
Shiralee Rudolph, Solicitor
Harrison Richards, Paralegal

[1] [2015] FWC 7312.
[2] [1998] IRCommA 1592.
[3] In Colwell v Sydney International Container Terminals Pty Ltd [2018] FWC 17; Streeter v Telstra Corporation [2008] AIRCFB 15; Damien O’Keefe v William Muirs Pty Ltd t/a The Good Guys [2011] FWA 5311; Campbell v Qube Ports Pty Ltd [2017] FWC 1211.
[4] [2019] HCA 23.
[5] Morris, S and Sorial, S, ‘Balancing public servants’ responsibilities with the implied freedom of political communication: What can we learn from Banerji?’, Monash University Law Review (Vol 48, No 1).
[6] [2016] FWC 1460.
[7] [2016] FWC 6186.