Workplace/Industrial Disputes

Can I get sacked for using social media?

Families, friends, holidays, work – we share it all online. But what happens when you say something negative about your employer on social media? Could you lose your job? Tindall Gask Bentley Senior Associate Ben Smith offers some clarity as the line between our real and virtual lives continues to blur.

Facebook, Twitter, Instagram, TikTok, Snapchat, LinkedIn. We are all connected via social media.

By its very nature social media is about people communicating on various issues, including making comments about things that annoy them. With millions of people online every day, all day long, it’s little wonder social media is now blurring the divide between home and work.

Increasingly, social media use has been the subject of dismissals by employers on the basis that comments made online constitute serious misconduct.

The law allows an employer to summarily dismiss an employee (ie. termination without notice) in cases where an employee has committed an act of serious misconduct and subject to the employer providing them with procedural fairness. Serious misconduct is defined by the Fair Work Regulations to include willful or deliberate behaviour which is inconsistent with the continuation of the contract of employment, or conduct that causes serious or imminent risk to the reputation or profitability of the employer’s business.

So, can you get sacked for social media use? The short answer is yes. There have been instances where the State Tribunals and the Fair Work Commission have found that social media use can be a valid reason for dismissal.

One such example is the case of a sales assistant who made disparaging remarks about his employer in his status update on Facebook. Despite him posting the comments on his home computer, there being no mention of his employer’s name and having his Facebook page set at maximum privacy settings it was established that other work colleagues would have seen the comments and this was a valid reason for his dismissal.

Another example occurred when a public affairs officer, working for the Department of Immigration, tweeted various comments to her 700 Twitter followers, critical of the Department’s practices and policies, some of its employees. Interestingly, she argued any disciplinary action taken against her would amount to a breach of constitutional freedom of speech. It was held that there is no freedom of political expression in Australia and no relief was granted to prevent her dismissal.

In recent years, to address social media’s ever-growing role in our day-to-day lives, employers have developed social media policies. As such, employees should consider such policies and proceed with caution before posting any comments online which could potentially be offensive or derogatory of their employer or other employees.

What if I feel I have been unfairly dismissed?

Be aware that you have only 21 days from the dismissal taking effect to apply to the Fair Work Commission in the case you are employed by a national system employer. That is, the employer and its employees are covered by the Fair Work Act.

For those covered by the SA public sector or local government sector the time limit is still 21 days, but it will be necessary to apply to the SA Employment Tribunal (SAET).

Both the FWC and SAET facilitate a conciliation conference. Having legal representation at this stage is critically important as it will increase your chances of a favourable outcome.  If your matter fails to be resolved at a conciliation conference then it may be listed for hearing.

Whilst offensive and/or derogatory comments about an employer or fellow employee may provide a valid basis for dismissal it will ultimately depend upon the facts and circumstances of that particular case.

If you feel you were unfairly dismissed from your job it is important to get legal advice at the earliest opportunity. Tindall Gask Bentley are experts in employment law.

For advice about your employment contract or any other employment issue, contact your nearest TGB office