In the digital age, it probably seems like a no-brainer that you shouldn’t post offensive content on social media – whether this relates to your workplace or not. However, this doesn’t seem to always be the case!
As businesses have come to focus more heavily on their online presence, there are understandable concerns about how poor behaviour by employees on social media can reflect on a company. Additionally, offensive behaviour on social media can have a major impact on workplace relationships and dynamics.
As various cases over the past several years have highlighted, there can be serious repercussions for employees when they share offensive content and poor behaviour on social media – including losing their job.
This has been highlighted by several high-profile cases in recent times. For example, in 2018, Israel Folau’s contract was terminated by Rugby Australia following a series of Instagram posts in which he called transgender people ‘evil’ and suggested homosexuals would go to hell unless they repented. The termination was a result of Folau’s posts violating the organisation’s social media policy.
Other cases have demonstrated that offensive and abusive behaviour online can lead to dismissal, particularly when the image of their employer is threatened.
The Fair Work Commission (FWC) has ruled on many unfair dismissals claims over the termination of employment due to offensive social media posts. While FWC rulings on these cases can go either way (depending on context), it is clear that if an employee is found to have posted offensive content online, there’s a very real risk of dismissal as a result.
Despite the obvious risks, it seems as though there are still some employees who just haven’t gotten the message (and some employers who still don’t have robust policies in this regard).
The urge by some individuals to post offensive content on social media can lead to tricky and unpleasant situations in the workplace, so it’s important to be clear about what is acceptable and what isn’t.
What can get an employee fired?
Well, this can depend on a number of factors, including the nature and intent of the comments, the employer’s policies, and whether or not the individual can be identified as an employee of the company.
Many companies now have social media policies that explicitly outline expected codes of conduct on social media. Violating these policies can lead to dismissal. The particulars of such policies can vary, but often include references to messages or content of a sexual or pornographic nature, aggressive or abusive behaviour, or overall conduct which can have a detrimental impact on trust in or the image of the organisation.
Many policies will also prohibit negative comments about/criticism of the organisation by employees.
Some businesses outline very broad codes of conduct that encompass social media usage both at work and outside work. But it’s important to note the content and language of social media policies can differ quite significantly.
As a number of cases have demonstrated, offensive content doesn’t have to directly involve an employee’s workplace or colleagues to cause a problem. In general, sharing posts or content which attack individuals or groups and/or are likely to cause offense are probably going to land an employee in hot water.
It is also important to note that the Racial Discrimination Act and the Sex Discrimination Act makes it unlawful to engage in behaviour that is likely to offend a person based on their racial or ethnic identity or their sex, or which constitutes sexual harassment. As such, “racist or sexist comments, or comments intended to incite violence or fear, may give rise to dismissal”, regardless of a company’s social media policy.
Rulings from the Fair Work Commission do, however, highlight that context can be important. For example, if a company does not have a social media policy or an employee was unaware of such a policy, or if post was shared from a private, personal account, this can complicate matters.
Other factors can also influence FWC rulings, such as whether or not an incident is a repeat offence.
What about posts made outside work?
Some employees contesting their dismissal have argued that since offensive content was posted from personal accounts and devices, outside of the workplace, their dismissals were not fair or valid. Indeed, some FWC verdicts have accepted this defence in the past.
However, since a 2011 ruling, the FWC has accepted that, under the right conditions, “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.”
This perspective was evident in a recent FWC ruling in an unfair dismissal case. In this case, an employee was dismissed by his employer after sharing several highly offensive posts on Facebook, which “variously applauded violence against a police officer, mocked domestic violence, expressed racist sentiments, vilified transgender and transsexual persons and used language that was homophobic.”
While the FWC noted the employer’s policy didn’t directly address “out-of-hours conduct”; identified the employer hadn’t afforded the employee “complete procedural fairness”; and acknowledged the individual’s Facebook page didn’t identify them as an employee of the employer, the dismissal was nevertheless upheld.
Akyra’s key takeaways
For employers – I’s critical your business maintains a clear and up-to-date policy on employee conduct on social media, which also addresses conduct ‘outside of work’. It is vital these policies and guidelines are clearly communicated to employees so there is no confusion or doubt about what IS acceptable behaviour online and what IS NOT.
Being clear in your organisation’s values and expectations of employees can help to avoid difficult situations when problems do arise. Regularly updating your policy is also helpful, particularly with the continuing emergence of new social media platforms. In this regard, it’s important to clearly define ‘social media’ and specify what platforms fall under this term.
For employees – Be aware of what policies your workplace has in place regarding social media. If something is unclear, ask for clarification. And as numerous FWC rulings highlight – even if you’re posting offensive content from a personal account outside of work, this can still lead to dismissal.
Overall, common sense is probably the best approach. Posting offensive comments on social media can often lead to blowback – and it’s not worth risking your job over it.
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to social media policies in the workplace. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.