Social Media in the workplace – Conduct & Implications

Social media, employer reputation and employee conduct

In a decision of 7 August 2019*, the High Court effectively affirmed the right of an employer to impose sanctions on an employee found to have breached the employer’s Code of Conduct for having published anonymous ‘tweets’ critical of the employer, its employees and the employer’s policies.

In this case, the employee had been terminated following an investigation into her conduct, where following her termination, the employee claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for an “injury” arising out of her termination.  For the purposes of compensation, ‘injury’ is defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner.

In an  appeal to the (Australian) Administrative Appeals Tribunal regarding the rejection of her compensation claim, the employee argued that as the ‘tweets’ related to her ‘implied right of freedom of political communication’ that her dismissal was not ‘reasonable administrative action’ within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The employee argued that her injury was therefore compensable.  The employee further argued that as the ‘tweets’ were anonymous (in that she used an alias), this should have also had a bearing on her situation.  The High Court disagreed.

The High Court considered the employment legislation giving rise to the employer’s Code of Conduct (which in this case was the (federal) Public Service Act and the Safety, Rehabilitation and Compensation Act 1988 (Cth) and ultimately affirmed the validity of the relevant provisions as applied by the employer and Comcare in the first instance.

Interestingly, the High Court also noted that as a ‘rule of thumb’, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.

Whilst every case turns on its own merits (including the adherence to the principles of procedural fairness and natural justice), this is an important decision for employers as it rejects the notion that an employee is immune from employment consequences in posting material adverse to their employer privately, or anonymously, ‘on line’.  The decision reaffirms the right of the employer to take reasonable action, including by way of sanction, in holding employees to account for the publishing of material on-line.

Mapien has extensive experience in the investigation and/or management of disciplinary processes and is ready to assist its client with these issues.

Please contact your Mapien consultant if you would like to discuss further.

*Comcare v Banerji [2019] HCA 23, 7 August 2019, C12/2018