Is inappropriate social media activity a valid reason for dismissal?

It should not come as a surprise that inappropriate social media activity can cause personal issues or even be a deterrent to landing your next job, but can it lead to being dismissed from your current one?

As time goes by and dismissals for inappropriate social media activity are being upheld by the Fair Work Commission, a precedent is being set that suggests it is a valid reason for an employer to terminate an employee’s contract, and here’s why.

Appropriate social media use

Regular social media activity such as uploading ‘safe for work’ photos and ‘liking’ someone’s status update about their promotion is highly unlikely to get you into trouble, even if it involves interactions with colleagues. While some people believe it is best to keep their private lives separate from their work lives, connecting with workmates over Facebook, Instagram or even TikTok is acceptable so long as the way you use the platforms doesn’t breach your employment contract or the policies you have agreed to adhere to.

Inappropriate social media activity

Social media activity that may be deemed inappropriate and, in turn, a valid reason for dismissal may include:

• disseminating content to colleagues that breach workplace bullying and harassment policies;
• making statements, sharing or uploading content that brings the employer into disrepute or otherwise tarnishes its reputation or negatively impacts its business; and
• the dissemination, creation, or uploading of any other content that breaches the law.

What actions might an employer take for inappropriate social media activity?

If an employer finds that the employee’s social media conduct is misaligned with their policy they may ask the employee to remove the content or comment, issue an official warning, stand them down or dismiss them completely by terminating their contract.

Is it legal for employers to discipline staff based on their social media activity?

In cases of serious misconduct, inappropriate social media activity may be a valid reason for dismissal, particularly if there is a clear case of bullying or harassment or a breach of state or federal law.

If an employee is sanctioned for improper conduct on social media then it indeed may be warranted, but employers should be cautious that the Fair Work Commission can choose to uphold or overturn a decision if an employee brings a case against their employer because they feel they were unfairly dismissed.

The Fair Work Commission will look at the context of the activity in question and any circumstances surrounding the conduct, including the impact the activity may have had on the employer’s reputation or business when determining whether a dismissal for a breach of a social media policy is within reason.

Are there any grey areas?

As misconduct on social media is still a relatively new reason for dismissal, plenty of grey areas exist and employers should seek advice before immediately dismissing an employee for their social media activity.

Political opinion, for example, is a legally protected attribute, so employers should be particularly careful if they are disciplining workers on the grounds that they expressed personal views with a political slant in a public forum, as they may be in breach of the Fair Work Act by doing so.

As with any type of behaviour that occurs within the workplace, it is within the employer’s rights to expect that their employees will not do anything harm the reputation of the business and therefore misconduct in this area can serve as a legitimate reason to terminate someone’s employment.

To avoid any doubt, employees should refrain from using social media to vent or ‘bad mouth’ their employers or tagging colleagues in inappropriate and not safe for work posts and they should apply the same approach to bullying and harassment as they would offline.

Employers can protect themselves by reiterating the breadth of their social media and bullying and harassment policies and reminding employees that a breach of those policies may lead to disciplinary action.

If you are seeking advice on inappropriate social media activity, speak to one of our employment lawyers today.