Is your company’s social media policy and training process robust enough? It could be your saving grace in an unfair dismissal case.

Last month, we wrote about the importance of having clear, concise, plain language workplace policies that employees can easily understand. 

Recent Fair Work Commission (FWC) decisions relating to employee social media use have underlined this message, criticising “tick-and-flick” training programs that should be avoided in favour of clear, practical training. 

Inadequate training comes back to bite

 In April 2023, the FWC presided over two cases related to the dismissals of two firefighters for numerous offensive, “vulgar” and pornographic posts they shared in a Facebook Messenger chat called “Sickos video sharing group”. 

The Commission decided to reinstate one of the firefighters, despite his posts including one of a group of near-nude women and some sexist and offensive comments. 

The FWC took into account the fact the worker was not properly trained in the employer’s social media policy, and that the social media training was only conducted online. 

Further, out of all the employee’s posts which led the employer to dismiss him, most had been made outside of work hours. The Commission stated that the employee was “entitled to a private life” and that the FWC “does not sit in moral judgement” of how the man should conduct himself in that private life. 

However, the Commission upheld the dismissal of another firefighter who posted a pornographic video in the group while he was on the clock at work. 

While the Facebook chat didn’t name the employer and that the Applicant didn’t use work devices to post in the chat, the on-shift message was enough to warrant his dismissal. 

The Commission reasoned that, “it was not credible that any employee would think that it was appropriate to distribute pornography while they were working and being paid”, and that the man “should not have needed a training course to know that distributing pornography during his shift was not appropriate conduct”. 

Despite ultimately upholding the second firefighter’s dismissal, the Commission did strongly criticise the “haphazard” way his employer went about training in its social media policy, noting that it appeared the be “along the lines of self-taught, tick-and-flick approach, which is simply not appropriate and lacks the educational rigour and outcomes of face-to-face training”.

The line between personal and professional life

In an unrelated decision this month, the Commission rejected an argument that an employee’s “concerning and inappropriate” social media posts breached his employer’s social media policy. 

The Commission found there wasn’t sufficient connection between the employee’s posts – which were made during his personal time – and the employer’s reputation. 

This was found despite finding that the employee’s posts were often racist, contained “tiresome stereotypes” and would be confronting even to those who railed against “wokeness.” 

Concerns over the content of the employee’s posts seemed to be outweighed by the fact they were made in private, in personal time, and without identifiable connection to his employer.

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Ensure your training and social media policy is up to scratch

 These decisions are a strong reminder to employers and HR professionals to: 

1. Ensure they have a clear approach to the timing and context of private social media posts, which may, depending on the circumstances, be more critical than the content of posts themselves in any disciplinary action or termination decisions; and
2. Review the clarity and delivery of all social media policies and training. The purpose and scope of your policy should be clear to all employees. For example, it should include the platforms that it encompasses (LinkedIn, TikTok, Facebook, etc.) and details about how employees are expected to conduct themselves when representing their employer on public social media platforms. Employers should also make clear to employees that their online conduct may impact their employment if such conduct can be:
   • connected to their employment; and
   • reflects badly on the employer

Even if an online approach is the most appropriate for your workplace, you should also consider the following:

• Training materials should be appropriate to the context of the workplace (i.e. face-to-face if employees aren’t exclusively remote workers).
• Plain language should be used
• Expectations about employee conduct and behaviour both at work and outside of work must be abundantly clear
• Training and dissemination of policies must be frequent and in-step with legislative changes 
• Understanding and compliance with policies should be monitored on an ongoing and continuous basis.

You could also consider adding clarity around the boundaries when using personal accounts/devices to share divisive opinions (i.e. offensive/inappropriate comments made on a personal LinkedIn account can quite easily be traced back to an employer), information about how to handle confidential information, and the details of your intellectual property boundaries (i.e. what can/can’t employees share online).

A robust policy, backed up with clear and regular training, ensures there are no grey areas around your expectations of employees’ online conduct. And in a world where social media use is only continuing to grow (in 2023, 21.3 million Australians are predicted to be on social media – that’s over 80 per cent of the population – for over two hours every day), this isn’t a topic for employers to ignore.

The advice in this article is general in nature and does not constitute legal advice.

Aaron Goonrey is a Partner and Emma Lutwyche is a Senior Associate and Meredith Oliver is a lawyer at Lander and Rogers.