Social Media and the ‘Free Speech’ of Employees
It is common practice for employees to engage in social media and share opinions online. In today’s digitally driven climate, it is more important than ever for employees and employers to be aware of their obligations which extend beyond the workplace.
Recently, the High Court ruled on a case involving a public servant who was fired for anonymous tweets criticising her employer, political parties and policies. This case highlights how the lines between the public and private lives of employees are being blurred.
Between 2006 and 2012, Ms Banerji posted more than 9,000 anonymous tweets criticising the Department of Immigration and Citizenship, members of Federal Parliament, the government, the opposition, and immigration policies. Most of the tweets were posted outside of work hours.
The Department terminated Ms Banerji’s employment for breaching the Public Service Act 1999 (Cth) and the Australian Public Service Guidelines, which required her to:
- uphold the values of the Australian Public Service, including being apolitical and impartial;
- maintain the good reputation of the Australian Public Service; and
- not make any public comment that is or is perceived to be harsh or extreme in its criticism of the government, a member of Parliament, or a political party.
Mr Banerji argued that these requirements were unconstitutional and invalid as they infringed on the implied freedom of political communication. Australian law recognises limits on the legislative power of the Parliament to make laws which place an unreasonable burden on freedom of political communication. However, this is not equivalent to a personal right to free speech.
The High Court found that the Public Service Act 1991 (Cth) and Australian Public Services Guidelines were reasonably necessary and balanced to achieve the legitimate purpose of protecting an apolitical, impartial and professional public service.
In terms of expression of political opinions, the issues explored in the Banerji case do not apply to private sector employees. Section 351 of the Fair Work Act 2009 (Cth) prohibits an employer from taking adverse action against an employee because of their political beliefs.
Free Speech and firing employees for negative social media posts
Employers should exercise caution before terminating employees for their posts on social media. Generally, employees owe a duty of loyalty and fidelity to their employees. Out of hours social media use can warrant disciplinary action if there is a sufficient connection to employment. This can extend to employees making negative public comments about their employer on social media. In light of the recent Banerji case, anonymity may not provide protection for employees.
The potential unfairness of a dismissal will depend on the facts of each case. In a 2012, an employee succeeded in an unfair dismissal action after he was fired for making an inappropriate comments about his colleagues on Facebook. Fair Work Australia considered a range of factors, including the employee’s understanding of his Facebook privacy settings, and that other employees commented on his Facebook posts and were not similarly disciplined.
A social media policy can help employers communicate expectations and consequences in regard to free speech of employees. A prudent policy should make it clear that employees cannot make social media posts which could harm their employer, even if the posts are made outside of work hours, and outlined disciplinary measures.