Posting on a Facebook account out of hours justified terminating an employee’s employment -Conrad John Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288.

An employee at the ACTU, Mr Cory, posted on his Facebook account “out of hours” what was said to be offensive material. The ACTU terminated his employment for serious misconduct on the basis that the material was offensive and discriminatory, a risk to health and safety and his employer’s (the ACTU) reputation.

Deputy President Masson said the approach to determining the relevance of “out of hours” conduct was that applied in Rose v Telstra Corporation Ltd Print Q9292 [1998] AIRC 1592, namely:

“ – the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

– the conduct damages the employer’s interests; or

– the conduct is incompatible with the employee’s duty as an employee.”

Deputy President Mason held that the conduct must be so serious that it indicates the employee’s rejection or repudiation of the employment contract.

Ultimately, Masson DP held that the decision of the employer to dismiss the employee was valid. In coming to the decision, Masson DP considered the ACTU’s policies, of which there were two regulating out of hours social media behaviour, namely the Code of Conduct and the Harassment, Discrimination & Workplace Bullying Policy. The posts were found to have contravened those policies.

While the ACTU had a valid reason to dismiss Mr Corry, it failed to provide sufficient opportunity to Mr Corry to allow him to provide a response, including failing to put the allegations in writing. Notwithstanding this, Masson DP placed significantly less weight on such failures, as he found the outcome would not have been any different since Mr Corry had shown no insight into, or contrition for, his conduct and made no concession as to his obligations owed to ACTU.

Whilst on this occasion a failure to provide allegations in writing was not considered fatal to the employer’s defence, employers are well advised to provide allegations in writing with sufficient detail, outline what policies, values or contractual provisions have been breached, and give the employee an opportunity to provide a response, before proceeding to termination of their employment.

If employers want to be able to prevent employees from posting views that are contrary to its values on social media out of hours, they should also consider amending their social media policy to ensure:

  1. It applies to all social activities irrespective of who owns the equipment (i.e. it does not only apply to social media posts made from work computers);
  2. the social media policy interacts appropriately with other policies such as a code of conduct or discrimination policy;
  3. It details in its policy, how a post shared privately, might nevertheless be shared widely and become available to the public.

Employers should also undertake training on the policy to ensure employees are aware of its existence, and that out of hours social media use may impact on their employment.

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