Many employers have introduced social media policies in recent years in an attempt to regulate inappropriate comments made by employees on social media sites such as Facebook, Twitter and LinkedIn.
A recent Fair Work Commission unfair dismissal case was Malcolm Pearson v Linfox Australia Pty Ltd, take for example.
In Malcolm Pearson, the defendant argued that the company (Linfox) did not pay him and could not control his life outside of working hours, they could not tell him what to do or say outside of work and that ‘was basic human rights on freedom of speech’.
In Australia, freedom of political communication is an individual fundamental right.
Dissenting, separate and minority rights have supported various rights associated with a fair trial, due process, equality before the law.
The argument to prohibit against retrospective criminal laws on the potential through implied guarantees to be protected through Chapter III of the Constitution is, unfortunately, not obtained by a High Court majority.
Though some commentators might prefer a more activist High Court on the question of implied rights and Chapter III, the presence of an Independent Judiciary with the power to review the legality of executive.
According to Appleby, Reilly and Grenfell, the publishers of Australian Public Law, freedom of speech is a long cherished principle, regarded as necessary to live a dignified human life, to enable discovery of truth, and to maintain democratic institutions of government.
In a series of cases in the early 1990s, the High Court established that the Constitution requires at least a limited protection of freedom of speech.
Our system of representative government means that Parliament cannot arbitrarily deprive Australian citizens of their right to vote or their freedom of political communication.
The constitutional principles of responsible and representative government do not confer individual rights, but instead place limitations on the power of the Parliament.
In Malcolm Pearson, the employee brought an unfair dismissal claim in the Fair Work Commission, alleging his dismissal was harsh, unjust and unreasonable.
The Fair Work Commission found that there was a valid reason for the employee’s dismissal because the social media policy was both lawful and reasonable in the establishment of a social media policy is clearly “a legitimate exercise in acting to protect the reputation and security of a business’.
The Commission noted:
“Gone is the time (if ever existed) when an employee might claim posts on social media are intended to be for private consumption only. An employer is entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees.”
An appeal by the employee to the Full Bench of the Fair Work Commission was unsuccessful.
When the protection of the company’s reputation and security is at stake, social media policy that is lawful and reasonable in its application may be relied upon to support a dismissal relating to misuse of social media outside of work hours.
The difference between ‘public’ and ‘private’ comments on social media.
Employers to avoid unfair dismissal risks, even if their companies have a social media policy prohibiting a broad range of unacceptable conduct on social media outlets, must take into consideration the application of the policy to ‘private’ conduct .
For instance, in Judith Wilkinson-Reed v Launtoy Pty Ltd t/as Launceston Toyota, an employee (who was a HR manager) sent private messages on Facebook critical of her manager, to the estranged wife of the manager, including making a comment that the manager was referred to as a ‘tosser’. The evidence revealed that the manager discovered the controversial comments of the employee after he accessed his wife’s Facebook account without her consent.
The company has a social media policy in place which banned employees making derogatory comments about colleagues, customers or suppliers on the internat.
The employee was dismissed and brought unfair trial claim, alleging that her Facebook chat was private and she did not believe the social media policy extended to personal confidential use.
The Fair Work Commission held: private comments made by the employee to her manager’s estranged wife did not justify dismissal because they were not made in public or to employees or customers of the business.
This case demonstrates that there is a limit to the types of activities a social media can regulate.