What you post on Facebook, Twitter, Instagram, Snapchat – you may regard as interesting, helpful, witty, humorous, insightful or an honestly held opinion. Your employer may regard it as vandalism, graffiti, damaging to their brand and grounds for dismissal.
The 25th of April is a special day in Australian history – Australians generally turn their thoughts to the events of that date in 1915 during World War 1, and subsequent fallen soldiers.
On that date in 2015, a reporter with an Australian broadcaster sent 5 tweets, dismissing the reverence of the date, and subsequently lost his job.
What happened? Why did this impact on the reporter’s position?
The reporter’s employment in this case is governed by a workplace social media policy and code of conduct. These codes and policies generally state that employees must be positive representatives of the employer, essentially not to bring the employer’s brand into disrepute. Being in the public eye as a television journalist there is an expectation, be it reasonable or not, that their public behaviour is of a high standard. Social media is perceived as an authority for information by some and a user of some celebrity is definitely influential.
In the 1997 film Liar Liar, Jim Carey’s character Fletcher Reede can’t lie for 24 hours due to his son’s birthday wish. The antics of the lawyer character are hilarious, but the reality is today, if on social media, he’d likely be dismissed.
Miranda: Well, what do you think of him?
Fletcher: He’s a pedantic, pontificating, pretentious bastard, a belligerent old fart, a worthless steaming pile of cow dung, figuratively speaking.
Mr. Allen: That’s the funniest damn thing I’ve ever heard. You’re a real card, Reede. I love a good roast!
You are probably familiar with Twitter bios which state: “views expressed are my own and not my employer”, “opinions my own”, “all views are mine”, or words to that effect. Journalists in particular have some sort of disclaimer in their bios. However, these words really do nothing to protect you from your employer’s social media policy or code of conduct – indeed, you can be dismissed if you share something that may be deemed as inappropriate.
What does this have to do with you, you’re thinking. This isn’t an isolated case. In 2013, Justine Sacco sent one tweet, which was offensive when read without the intended sarcasm. She then boarded a plane for a long haul flight. She wasn’t in the public eye when she left. She was trending worldwide on Twitter when she landed at her destination. Her employer dismissed her for what it called her “hateful statements”.
If your employer does not have a social media policy, a workplace conduct policy or a code of conduct, your employment contract may have what is termed as a morality clause that could prompt your employer to terminate you for inappropriate behaviour out of work. These types of clauses stipulate acceptable employee behaviour both inside and outside of the workplace. The reason behind them is to limit or prevent direct financial or reputational harm to the employer. Breaching a morality clause, workplace social media policy or workplace conduct policy can result in immediate dismissal. If these clauses are clearly defined in the employment contract, tribunals will uphold the dismissal. In 2011, Fairwork Australia upheld an unfair dismissal claim stemming from the person posting (of an expletive-laden rant) against his work colleagues on Facebook. In that case, the Employee Handbook referred to the requirement that employees be aware that:
“In communicating with other staff…employees should be courteous and polite, maintain a high level of honesty and integrity and present themselves and the business professionally”.
There’s been some rumblings about the journalist’s right to freedom of speech. In my opinion, his right to freedom of speech has not been impacted – freedom of speech does not mean freedom from the repercussions from those utterances.
Social media allows instantaneous and uninhibited communication by anyone who has an account. Twitter’s terms of service state:
You are responsible for your use of the Services, for any content you post to the Services, and for any consequences thereof…You should only provide content that you are comfortable sharing with others under these Terms. What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!
In my previous articles on social media and the law for Leaders in Heels, I have urged you to keep your social media professional and to think before you post. I highly recommend if you have some sort of disclaimer in your Twitter bio, that you lose it. It offers no protection. If you have ‘friended’ work colleagues on Facebook, use Facebook’s privacy settings (audience selector) which allows you to choose who you share posts with.
Social media provides a forum where information can be quickly and efficiently published. It has transformed modern communication. Hundreds of thousands of people log into Twitter or Facebook to read the news, share interesting (and mundane) stories, engage with businesses, market their own expertise and connect with peers. The ordinary person can connect with and participate in the same forum as celebrities, politicians, government departments, brands and news providers. And your employer. So think before you post. The consequences for you could be dire.
Yolanda Floro is Leaders in Heels’ Social Media Editor. She has worked as a media lawyer specialising in the areas of film, television and digital media law. She has a Master of Law, Media and Journalism from UNSW.
 Another reporter from the same broadcaster has since posted a link to http://theconversation.com/anzacs-behaving-badly-scott-mcintyre-and-contested-history-40955 on their personal Facebook page, and has also been dismissed. We understand legal action against the employer is pending in both cases.
 Mr Damian O’Keefe v Williams Muir’s Pty Limited T/A troy Williams The Good Guys (U2010/887)  FWA 5311 .