Social Media Strife – the need for clear boundaries

As social media continues to proliferate, employees and employers alike need to be wary of how they navigate social media platforms and how and when, social media activity may warrant disciplinary action, including dismissal.

Two recent suspensions in the tertiary education sector have demonstrated that social media conduct is no longer shrouded by anonymity and that employers are increasingly being forced to consider whether social media conduct is inappropriate and whether it forms a ground for suspension or dismissal.

Conversely, employees are disputing such decisions, prompting questions about when private online conduct can be sufficiently associated with employment to warrant disciplinary action.

In April this year, a Deakin University (‘Deakin’) academic was suspended for a series of conduct on social media platforms which Deakin considered to be inconsistent with its image.

The Academic in question, Associate Professor Hirst, tweeted an opinion about Sky News viewers which used language of a sexual nature. He further posted a photo of a knitted beanie with profane language encouraging his Twitter followers to wear the beanie, saying, “I’ve got mine on today, it’s a subtle hint to your boss”. Both Tweets were posted under his personal Twitter handle “@Ethical Martini”.

The incidents were the impetus for Associate Professor Hirst’s suspension without pay and ultimate termination of his employment for serious misconduct. At the time of writing, the National Tertiary Education Union are representing the Professor with a view to reinstatement.

Whilst the Professor’s conduct appears, at least, tangentially associated with his employment, a second suspension of a La Trobe University (‘La Trobe’) academic in March this year has attracted greater controversy. The La Trobe academic and co-founder of its affiliated “Safe Schools Program” (‘SSP’) Ms Roz Ward was suspended with pay from her employment for two days for labelling the Australian flag “racist” on her private Facebook page commenting that the flag should be replaced with a red socialist flag.

Despite Ms Ward posting the comment as an ostensibly private opinion, La Trobe reportedly suspended her, stating that her comments “undermined the public confidence in the [SSP and] damages the reputation of the program.”

La Trobe received significant backlash from media and legal commentators over its suspension decision with Ms Ward threatening to commence proceedings.  Ms Ward was permitted to return to duties after two days’ suspension however media reports indicate Ms Ward may file a General Protections Application for Adverse Action.

 Whilst many of the Fair Work Commission’s decisions relating to social media arise in circumstances of dismissal, the recent suspensions bring to the fore the possibility of an adverse action claim should an employer suspend an employee (with or without pay) for social media activity.

To mitigate risk, employers should consider implementing clear measures, such as a social media policy and should bear in mind employees’ rights to privacy and to expression of political opinion.

If you would like any more information about managing social media use during and outside of the workplace, or with drafting social media policies please don’t hesitate to contact Nick Stevens, Megan Cant or Jane Murray.

Published June 2016