Social Media Missteps: How Far Can Employers Go in Disciplining Staff?

Can an employee’s “off-the-clock” Facebook rant really put their job at risk?

In today’s workplaces, the answer is increasingly yes.

Social media has blurred the lines between professional and personal life, and organisations are grappling with how to respond when employee conduct in the digital space conflicts with company values.

HR professionals know this tension well.

On one hand, employees are entitled to hold personal beliefs. On the other, employers have a legitimate interest in protecting their reputation and ensuring workplace policies and values are respected. As always the Fair Work Commission provide some guidance on dealing with social media and the workplace.

Conrad John Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288 (15 February 2022)

The Australian Council of Trade Unions (ACTU) is widely known for lobbying on behalf of workers. But as an employer itself, it faced a challenge when one of its staff made inflammatory posts on his personal Facebook page.

The posts included anti-vaccination comments and derogatory remarks about domestic violence, sexuality, and the LGBTQ+ community. While these posts did not reference the ACTU directly, they clashed with the organisation’s code of conduct, social media policy, and broader public stance on equality and inclusion.

After becoming aware of the comments, the ACTU terminated the employee’s employment. The employee challenged the dismissal, arguing:

• His Facebook page did not name his employer or location;
• The posts were made outside of work hours; and
• The social media policy did not explicitly cover this type of conduct.

What the Fair Work Commission Found

The Commission dismissed the claim, siding with the ACTU.

“The fact that an employee’s social media posts may be anonymous or limited in terms of its initial distribution may be irrelevant once the post is made publicly on a social media platform… A right to hold and express a strongly held views does not however mean the Applicant has an unqualified right to publicly espouse views that are contrary to the interests and values of his employer.”

The Commission made two (2) key observations:

• No unlimited right to express views: Employees may hold personal beliefs, but publicly promoting views that directly conflict with an employer’s values can justify disciplinary action.
• Public profile matters: By posting on a public Facebook setting, the employee had no control over how widely the comments could spread. Even without naming his employer, the posts carried reputational risk for the ACTU.

The FWC also applied the principles from Rose v Telstra Corporation Limited (1998) AIRC 1592, finding that “out-of-hours” conduct can still breach the duty owed to an employer where it causes real damage to the employment relationship or the employer’s reputation.

That said, the Commission criticised the ACTU’s process. A rushed verbal show cause conversation was considered procedurally unfair. Best practice would have been a written show cause letter, setting out the allegations and giving the employee time to properly respond. Ultimately, however, the seriousness of the posts outweighed these flaws.

Also the Commission came to the view that even with more procedural fairness the same decision would have been likely made.

Permission to appeal this decision by the applicant was also unsuccessful.

Key Takeaways for HR

This case offers several practical lessons for internal HR teams and managers:

1. Procedural fairness is non-negotiable. Even when misconduct is obvious, employers should follow a fair process. Always provide a written show cause letter and a genuine opportunity to respond.
2. Review your social media policy. Many policies only cover use of company systems or posts during work hours. Widening the scope to include public posts inconsistent with organisational values may be necessary especially if your organisation is closely linked with government funding, religion, education or a not for profit organisation.
3. Out-of-hours conduct can count. If the behaviour risks reputational damage, employers are entitled to act. Training managers on when and how to escalate concerns is essential.
4. Values should be more than words on a website. Employees should be aware of organisational values and policies through induction, training, and regular communication.
5. Context matters. A single questionable post may not justify dismissal, but repeated conduct that undermines core values will be treated seriously.

Final Word

This decision reinforces that while employees are entitled to personal opinions, they cannot expect those opinions when shared publicly and in ways that cut across their employer’s values to be consequence free.

Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising on out of hours conduct as well as training leadership, management and HR teams on how to prevent and deal with conduct issues.

Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au.  All Employers receive an obligation free consultation.