In recent times, challenges relating to controversial opinions on social issues and the relationship between employers and employees have become front page news (and not for good reasons).
As several high-profile cases have shown in recent times, employees expressing opinions which clash with the values of their employer and/or company can lead to strained relationships, termination, and unfair dismissal claims.
So, when can these opinions cause problems in the workplace? And how should employers approach these types of tricky situations?
As the team at NB Lawyers notes, many organisations today “have particular values and public positions on social issues such as domestic violence, the black lives movement, #metoo campaign, sexuality, racism and vaccinations.”
Generally speaking, there are always going to be diverse opinions on social issues, and an employer’s position on an issue isn’t always going to align with that of their employees.
While differing opinions are always going to occur, an employee’s personal views can lead to difficulties when they’re publicly shared on social media.
A recent case brought to the Fair Work Commission (FWC) involved a union employee who had been fired after sharing controversial views on his social media account. These posts included comments praising anti-vaccine protests and mocking the Black Lives Matter movement and the LGBT community.
The employee’s social media activities came to the attention of their employer after similar messages had been shared with work colleagues through an internal messaging app.
After a discussion with their employer, the worker was terminated on the grounds that their explanation of the posts in question was not satisfactory, and that this behaviour was inconsistent with the organisation’s values and policies.
Rightful termination or unfair dismissal?
Following this incident, the employee filed an unfair dismissal claim with FWC, arguing that the social media posts were shared outside of his working hours, that his profile did not identify himself as an employee of the organisation, and that his behaviour had not breached the terms of his employment contract or the company’s social media policy.
Ultimately, the FWC rejected the employee’s unfair dismissal claim, despite some concerns over the lack of procedural fairness demonstrated by the employer.
The FWC’s decision on this case was based on several factors. This included a rejection of the employee’s claim that his social media account did not identify his employer, noting that as his profile was publicly available, his posts had the potential to be widely circulated with the potential to damage the reputation of his employer.
The FWC also noted that “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 also rejected the employee’s argument that his dismissal was unfair as the social media posts in question occurred outside of office hours. The principles of Rose v Telstra were applied in this regard, suggesting that despite occurring outside of work, the employee’s actions were “likely to cause damage and was a breach of the duty owed to the employer.”
How should employers approach these challenges?
To mitigate the risk of these types of situations, it’s important that businesses have clear social media policies in place – and that these are regularly updated to reflect the views and values of the business.
This can help to ensure that there is no confusion regarding what kind of behaviour is acceptable and what is not.
It is also critical that employers demonstrate procedural fairness when these problems do emerge.
If an employee is believed to have engaged in this type of behaviour, they should be provided with a show cause letter and given the opportunity to respond to any allegation, as well as any proposed breach of company policy.
Ensuring that the correct steps are followed here is not only essential to procedural fairness that all employees are entitled to, but can also help to avoid the difficulties of an unfair dismissal claim.
Akyra’s Key Takeaways
- While there are always going to be differences of opinion regarding certain social issues, publicly sharing controversial views which clash with the values of their employer can lead to major problems for employees – including termination.
- Rulings from the FWC demonstrate that under certain conditions, this type of behaviour can constitute legitimate grounds for dismissal
- Having clear social media policies in place, and ensuring procedural fairness is observed can help businesses to avoid difficult situations and protect against unfair dismissal claims
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to employment agreements and 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.
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https://www.lawyersforemployers.com.au/unfair-dismissal-employment-law-opinion, https://www.workplacelaw.com.au/posts/fwc-highlights-importance-of-social-media-policy-to-safeguard-employers-reputations#:~:text=In%20Corry%20v%20Australian%20Council,employee%20was%20denied%20procedural%20fairness, https://www.gclegal.com.au/limebites/offensive-posts-on-personal-social-media-accounts-can-get-you-sacked-some-people-still-dont-get-it/