If you think what you post on your Facebook page is none of your bosses’ business, you’d be wrong. We all know that posting a rant about your boss or colleagues is not the best idea, but when can sharing your opinion on social media get you the sack?

The short answer, is that it depends on the content of what you post on social media, and more importantly, what your employer’s policies say about the use of social media inside and outside of the 9-5. But, when most employment contracts don’t set out the precise types of behaviour that you can and can’t engage in outside of the workplace, how are you to know?

Generally, under the Fair Work Act, your employment can only be terminated for conduct occurring outside of work hours (in the absence of anything in your contract), when the conduct is:

  1. Likely to cause serious damage to the employment relationship; or
  2. Damaging to the employer’s interests; or
  3. Incompatible with the employee’s duty.

What kind of behaviour are we twittering on about then?

To start with, apply the law of common sense: thou shalt steer clear of making threats against your colleagues and ranting about your employer on social media (regardless of whether they mess up your pay). This was a matter that made it to the Courts and the employer, (The Good Guys) dismissed the employee (The ‘Bad Guy’) and the Court held that the dismissal was valid. 1

What about posting anonymously or under a pseudonym? Still risky. Especially when you post derogatory comments on the Facebook page of a not-for-profit organisation who is associated with your employer. In this case the employee changed his occupation on Facebook to read: “Dinosaur Wrangler at Jurassic Park” (dream job, right there). But alas, it was still possible for the adept social media stalker to identify the employee’s real employer, and he was therefore considered to have damaged the interests and reputation of his employer and was validly dismissed. 2

Early this year a U.S. comedian had her television show cancelled following a racist tweet and it appears that, somewhat unsurprisingly, racism on social media is likely to have you packing up your office too. Back in Australia, this was also the case for a senior Victorian police officer who made a number of racist and obscene posts on social media. This police officer was the head of the force’s Professional Standards Command. He resigned.

Lessons to take away

Although your employer does not have the right to control your actions outside the workplace, there are certain circumstances where off-duty conduct will constitute a breach of your terms of employment and can lead to dismissal. Make sure you are familiar with your employer’s policies regarding social media and the use of IT equipment and software. And if in doubt, don’t post.

If you are find yourself in a tricky situation with your employer call our team at Chamberlains to discuss how we can help.

1 Damian O’Keefe v William Muirs Pty Ltd T/A The Good Guys [2011] FWA 5311
2 Cameron Little v Credit Corp Group Ltd [2013] FWC 9642

 

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