Are you monitoring your employees’ social media use?

Fair Work Australia has confirmed that sacking an employee for comments made on social media websites can be justified in appropriate circumstances.

Deputy President Swan of FWA decided in O’Keefe v Troy Williams’ Good Guys that the employee’s use of Facebook to post abusive comments about a manager at his workplace was related closely enough to his work because “the separation between home and work is now less pronounced than it once used to be.”

The decision is potentially an important one because even though the employee had posted the comments on his home computer and out of work time, the Tribunal found that it constituted a breach of the employer’s policy requiring employees’ conduct to be “courteous and polite” and not to use “offensive language, resort to personal abuse or threaten or engage in physical contact.” The employer also had policies against sexual harassment and bullying.

The employee had posted the comments following complaints to the operations manager of his employer that his pay had not been correctly calculated or paid. The employee admitted that the comment that “f..king work still haven’t managed to f..king pay me correctly. C..ts are going down tomorrow” was directed at the female operations manager. FWA agreed with the employer’s argument that fellow employees, who were the employee’s “friends” on Facebook, could read the comments. Even though the employer wasn’t named, the employee had blocked the operations manager’s access to the comments and was fully aware that other employees could view the comments.

As a result, Deputy President Swan found that the employee’s behaviour was as serious as if it had taken place in the workplace itself. The conduct in posting the comments was therefore serious misconduct, and a serious breach of the employee’s contract of employment.

The decision can be contrasted against other cases in which an employee’s excessive use of social media during work time could justify termination. It also contrasts with the case of Fitzgerald v Escape Hair Design in which FWA found that the employee’s comments would not be seen by many people and would not be damaging to the employer’s business.

O’Keefe’s case is an example of applying well established principals to modern technology. Conduct outside of work hours, and outside the workplace can still constitute a valid reason for termination. Furthermore conduct or comments which are targeted against workmates might be capable of constituting a breach of the employer’s policies which justifies termination, even if there is not necessarily any harm suffered by the workmate.

The case also demonstrates that the line between work and personal life is increasingly narrowed: employers need to be alert to the fact that social media can be more than harmless fun. As the employer apparently feared in O’Keefe, the potential for an employee’s comments to lead to more serious consequences, such as a claim of sexual harassment by a workmate, is very real. Employers should ensure that they have clear policies which cover extreme antisocial use of social media.

This article was originally published on where Peter is a regular contributor.

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