The Fair Work Commission (Fair Work) is the government body that deals with employment issues on a national level. An increasing number of cases relating to social media use in the employment context has led to more employees and employers asking about the legal boundaries as to its use and inspection. This article sheds some light on the legal issues that may arise if an employer seeks to inspect their employee’s social media accounts.

Public Visibility

Usually, an individual has a choice as to whether their social media pages are publicly accessible through the filters and settings available. If a social media page, including Facebook, is available to the public, no law prevents an employer from viewing this information. The employer’s use of this information is, however, restricted as various laws may come into play, including privacy considerations.

In comparison, if you have a social media page that has restricted access, an employer cannot access this page, and if they request to, you have the right to refuse access unless you have otherwise agreed through a legal contract or otherwise, e.g., your employment agreement.

Use of Information

As there are no hard and fast rules that have developed relating strictly to social media, you need to consider current legislation. For example, if an employer asks to see your social media page, for what purpose do they want to view your Facebook page? What will they do with the information found on your Facebook page?

Here there could be an array of legal issues that may arise. For example, if an employer previews your Facebook page and uses the information to discriminate against you, for example because of your religion, sexuality or political beliefs, then an employee may have a cause of action against the employer.

Employee’s Conduct on Social Media

If any employee’s behaviour is sufficiently connected to their place of work (regardless of whether the conduct is online or in real life), it may be considered a breach of the employee’s contract of employment. This is where social media users should be wary of their actions on social media, especially when it comes to posts about colleagues or posts about the business itself.

If a select group of colleagues can access a post, which is in turn reported to management, an employer can legitimately access this information relating to an action for breach of contract. This occurred in O’Keefe v William Muir Pty Ltd t/a The Good Guys [2011] FWA 5311, where an employer investigated an employee’s Facebook posts. These posts were considered a breach of the employee’s obligations arising from the employee handbook, which dealt with conduct, sexual harassment and bullying.

If an employee makes a post that is detrimental to the employer, all the above factors need to be considered, but the employer will also need to note down what is their cause of action against the employee. This may include a breach of an employment agreement, and require details of the damages that have arisen as a result of the employee’s conduct.

***

Although the legislation does not explicitly name social media use, the same legal principles will still apply when it comes to privacy and workplace conduct. If you are any employer and have any questions about monitoring your employee’s social media, or an employee who is unsure as to your rights, ask our employment lawyers on 1300 544 755. 

Kristine Biason

Ask Kristine a Question

If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.