We are always encouraging others to share – belongings, snacks, kitchen items. But sometimes, it is best not to share. Social media is one such example where people can easily forget this and share impulsive emotions about their workplace or colleagues. Publishing a post or status on Facebook or Twitter allows the wider public to access your workplace criticisms and complaints. As a business owner, you may have had employees engage in this conduct, and you are unsure what you can do. Can you legally fire an employee for comments made on social media?

How has the Court approached this Question?

In Stutsel v Linfox Australia Pty Ltd, an employer terminated their employee for serious misconduct based on comments made on his personal Facebook page about two of his managers. The employer argued that the comments about the first manager were racially derogatory and the comments about the second amounted to sexual discrimination and harassment. He was given a letter of termination stating these as the reasons and had, at that point, been employed for 22 years as a truck driver.

Stutsel believed that his Facebook privacy settings were such that only his friends could view his page. This is becoming an increasingly common misunderstanding amongst employees. Stutsel further claimed that he had an unblemished record with his employer for the past 22 years.

The Court held that his comments about his first manager were in poor taste but that they could not amount to being racially derogatory or intended to vilify his first manager on racial grounds. They went on to look at the comments made about his second manager. The offensive comments in question were not made by Stutsel but by others commenting on his post.

Critically, the employer did not have any policies about the use of social media by employees. The Court found Stutsel was not guilty of serious misconduct, and Linfox Australia Pty Ltd had no valid reason for terminating his employment. In determining whether Stutsel’s termination was harsh, unjust and unreasonable, the Court considered his strong employment record and age.

There have been many instances, however, where employers have fired their employees for posting comments that have involved discrimination, harassment or bullying. Most recently, SBS dismissed Marion Ives in May for sharing an article criticising their recent lack of employment of non-Anglo-Saxons.  Marion Ives did not write the article. The broadcaster further took action and terminated presenter, Scott McIntyre, for his ‘inappropriate’ Anzac Day tweets that SBS considered ‘disrespectful.’

McDonald’s also fired two employees for calling a customer a ‘lowlife’ on Facebook and commenting, “Go run on a treadmill instead of going through drive-thru.”

Knowing Your Rights

Employers need to have a clear social media policy so their employees know what behaviour qualifies as unacceptable. Employers can be vicariously liable for the comments their staff make to customers, even while not at work.

The line between comments made privately and publically, at work and home, are increasingly blurred. It is imperative that employers know how to protect themselves and set out clear standards for employee conduct on social media.

Employees need to make sure they keep personal and work devices separate. It is sensible to check your privacy settings and ensure your comments cannot be viewed publicly.

Should you have any questions, LegalVision’s specialist employment lawyers can assist you in understanding your obligations as an employer and an employee. If you need a social media policy for your business drafted, please get in touch!

Bianca Reynolds

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