Freedom of Tweet

Rights of Employees and Employers regarding Social Media Use

The line between our private and public life has blurred once again.

Recent decisions of the Fair Work Commission and the Federal Circuit Court of Australia have re-enforced the idea that there is not an ‘unfettered freedom of political expression in Australian law’ regarding angry or disgruntled employees venting on social media.

Whilst the case of Banerji v Bowels concerned a government employee who made critical comments about the government and its immigration policy, the decision has serious implications for private sector employers. This case has emphasised that employees are less likely to win adverse action claims by arguing their ignorance of the impact and implications of social media.

In Banerji, the Judge stated that whilst employees do not have an unrestricted right to freedom of political expression, even if they did, that is not of itself a valid reason to breach a contract of employment.

Conversely, in the case of Linfox Australia Pty Ltd v FWC an employee was found to be unfairly dismissed after posting unfavourable comments about their manager on Facebook. However, in its decision the Court took into consideration the employee’s lengthy period of service (over 22 years), age and otherwise good employment record.

What can employers do to limit misuse of social media and potential claims?

The best ways for employers to limit and defend unfair dismissal and adverse action claims that arise due to misuse of social media is to ensure that the employer has a comprehensive and up to date social media policy, setting out the employer’s social media rules in its employment contracts and by conducting regular training and/or education seminars with its employees.

Should you require assistance with any policies, contracts, staff training or claims please contact our Gavin Parsons or Harry Cotton on (02) 9262 4471 or at harry@gpalaw.com.au.