The increasing relationship between Twitter and the Centrelink dole queue. They are not words you hear in the same sentence quite often are they? However, the increasing use of an employee’s social media commentary as a lawful reason for the termination of their employment is further blurring the boundaries between work and private life. Conversations that traditionally took place after hours with colleagues or at the dinner table now have the capacity to be pondered by millions of strangers worldwide, and as such, courts are grappling with the appropriate level of intervention into the private sphere to protect employer’s good will. At what point does the implied freedom of political communication take a backwards step to the protection of your employer’s business interests? HISTORICAL BENCHMARK In the High Court case of Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66, the duty to protect your employer’s good will is breached when the conduct of an employee involves incompatibility, conflict, or impediment, [with the duty] or be destructive of confidence. The Court ruled that: Conduct which in respect of important matters is incompatible with the fulfilment of an employees duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal... An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises. Traditionally, the duty to well and faithfully serve your employer was the focal point of cases relating to the unauthorised use of confidential information, or working for your ex bosses competitors. However, we have seen an increase in galvanization of the duty in cases where workers have made critical comments outside of the course of their employment. Courts and tribunals are gaining an appetite for upholding the termination of an employment contract on the basis of a breach of the duty of loyalty, evidenced by talking “out of shop” online. Employees who attempt to rely upon implied rights of freedom of speech will find no joy. CURRENT CASE LAW The Federal Court recently ruled that an unfettered right of political communication does not provide a licence to breach an employment contract which ordinarily included a ban on certain activities outside of the sphere of work. Public servant Michaela Banerji was sacked after using a pseudonym to post disparaging comments critical of the previous government’s policies. In the case of Sally Anne Fitzgerald, a hair dresser fired for posting adverse comments about her work on Facebook, the Fair Work Australia Commission ruled that: A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see... It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences. Interestingly, in a case which highlights the need for every employer to have a social media policy, Linfox unsuccessfully argued that postings by an employee on Facebook breached the duty of loyalty in defending an unfair dismissal claim. Glenn Stutsel was sacked for allegedly posting racially derogatory remarks about a manager on his Facebook page. Offensive comments about a female manager were also posted on his page by a colleague. He claimed he thought his Facebook page was private, and the Fair Work Commission found in his favour. The Tribunal ruled that Stutsel had a genuine belief his posts on his Facebook pages could only be viewed by himself and those he accepted as Facebook friends. The tribunal stated that “The chains of comments have very much the flavour of a group of friends letting off steam and trying to outdo one another in being outrageous. Indeed it has much of the favour of a conversation in a pub or cafe, although conducted in an electronic format. Any external reader not familiar with either Linfox or particularly the NDC, would have considerable difficulty in making out what was going on in several instances and would have some difficulty in determining about whom some of the remarks were made”. The case certainly presents itself as an anomaly and there is probably some merit to the argument that Courts are occasionally willing to “lower the bar” for workplaces housing a traditionally blue collar culture, which when viewed objectively, are workplaces which often contain day to day banter of a nature not usually tolerable within a white collar context. I’m certainly not making an argument for us a society to turn a blind eye to bigotry or bullying, I’m merely suggesting that judges are for most part, acutely aware of the differing sensitivities (or lack thereof) of white v blue collar workplaces. Credit must also be given to Linfox for taking the bold step to fire Stutsel in order to demonstrate that it has a zero tolerance policy to racial/religious vilification. Linfox management also took heed of the loss and moved to adopt a social media policy which was subject to successful termination proceedings. After the Stutsel ruling, a Linfox employee was subsequently terminated, for amongst other things, refusing to sign the social media policy. The Fair Work Commission was unswayed by the argument that the social media policy “impinged upon the worker’s private life”. Fair Work Australia also upheld the termination of an employee of Credit Corp who posted comments critical of another organisation on their Facebook page. He was able to be traced back to Credit Corp who were subsequently alerted to his comments. The fact he made the comments on his own time was not an arguable defence and the absence of a workplace social media policy did not prohibit Credit Corp from firing him. It was inevitable with the seismic shift to the phenomenon of social media as a means of widespread instantaneous communication that it would lead to new issues in the workplace. These include the extent of the use of social media while at work, the content of such communications and whether they be work or non-work related. Employers have had to respond to the new phenomenon with appropriate policies and codes of conduct - just as they had to respond to employees using work provided computers to receive, store or distribute inappropriate or non-work-related material. I hasten to add, the applicant is perfectly entitled to hold views about any organisation and to express such views in the public domain; but he is not entitled to do so in a manner which injures his employers business relationship with that organisation. In an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business. My next blog will look at the history of workplace surveillance and arguments in favour of federal law reform in this area of growing complexity for employees and management. Adam Akbulut is the founder of Amicus Lawyers and a Melbourne based lawyer with a keen interest in family law, commercial law for SME’s and privacy law.
Posted on: Mon, 30 Jun 2014 14:02:21 +0000
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