By Hannah Pelka-Caven

Although breaches of social media policy can constitute a valid reason for dismissal, how employers handle such breaches can prove costly. They can also constitute a significant reputational risk, particularly where the policy breach occurs through an employee expressing a political opinion.

This arose recently when Cricket Australia settled a very public unfair dismissal application brought by a former employee. The employee had been employed as a public policy and government relations manager, and was dismissed after writing a series of tweets from a personal account criticising Tasmanian Government policy. The employee had been amongst the women forced to fly to the mainland to have an abortion when Tasmania’s only abortion provider closed.

In one tweet in June, the employee had described the government’s rejection of a motion to re-establish abortion services in the state through public hospitals as “most irresponsible … gutless and reckless”.

The employee was stood down by Cricket Australia months later, after the organisation claimed the social media posts had “insulted” the Tasmanian government and made the employee’s position as a government relations manager “untenable”.

In the termination letter, Cricket Australia said the employee had breached the social media policy and no longer had the support of Cricket Tasmania. “While Cricket Australia has no issue with you using your political beliefs, the disparaging tone which you have used in your tweets and in the 14 June tweet in particular regarding a member of parliament is of significant concern,” the termination letter said.

The employee subsequently argued that Cricket Australia had breached the Fair Work Act (FW Act) by sacking her for expressing a political opinion.

Expressing a political opinion should not be something subject to discipline unless it either identifies the employer or the employer operates in the field of criticism.

If a private sector employee is disciplined for expressions of political opinion online, the employer may contravene the general protections granted to employees under the FW Act. However, the employer will have a defence if it can establish that discipline was taken because of the inherent requirements of the particular position concerned.

This requirement for a connection between the social media rules and the employee’s work is also relevant to the question of whether dismissing an employee for breaching those rules is unfair.

Several unfair dismissal cases have dealt with the dismissal of employees for making private social media comments out of hours. These cases suggest dismissal for such a comment is more likely to be defensible where the content:

• is closely connected to the workplace;
• is serious in nature;
• identifies individuals and the employer;
• is accessible by other employees or managers;
• disparages a co-worker, manager or the employer; and
• is authored by a user who was not a ‘savvy’ Facebook user and ignorant of the use of privacy settings.

Ultimately, if you want to control comments that employees make about certain matters that don’t relate to their employment, or their employer, then you have to be very specific about why such comments may impact on their employment and even then, this can generally only be done for very senior employees.