It’s undeniable: social media has changed almost every aspect of our lives. But how does it impact upon our working life, and to what extent can we be held liable for posts we make in a personal capacity? The short answer is that material you post online may have significant ramifications upon your employment. In this article, Hope Earle Lawyers’ Raffaella Oliva explores the consequences of one’s social media newsfeed upon their employment, and the weight digital posts carry under the Public Service Act (1999).

The case of Comcare v Micaela Banerji [2019] HCA 23 recently considered whether an Australian Public Servant (APS) could be in the firing line – literally - for anonymous tweets posted. The respondent was anonymously operating a twitter account under the name “@LeLagale” and used the popular account to post a series of tweets that expressed criticism of her employer. Under the Public Service Act 1999, APS employees are required to uphold the values of their employers, exercising integrity and impartiality in their performance.

The court determined that the respondent’s termination was made on reasonable grounds as a consequence of her breach of company policy in posting the deprecating tweets and was therefore deemed valid – despite her argument that it breached an implied right to free speech. The decision demonstrates that APS employees may be subject to disciplinary action for breaches of their guidelines, irrespective of whether or not they can be identified in their conduct.

This ignites a crucial discussion for non-APS employees… is there a risk digital content posted in a personal capacity could implicate an employee’s job security? This will depend on a range of factors, most importantly the terms of the employment contract, but also common law and legislation all of which are designed to protect the reputation and interests of a business. Hope Earle Lawyers advise when posting social media content, proceed with caution. The decision of the Court sends a powerful message that inappropriate out of hours conduct may justify repercussions at work, particularly where a relevant code of conduct or legislation applies.

Similarly, the case of Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622 further serves to confirm that employers require a valid reason as the basis for a dismissal and should consider the relevant circumstances. In this case, Ms Murkitt made a Facebook post publicly disapproving of the current structure of her workplace and criticising new owners of the business. Her employment was terminated as a result. However, whilst the court found that her employer had a valid reason for her dismissal, they had failed to consider the surrounding context of her employment and determined that she was unfairly dismissed.

The instances highlighted in this article shine a light on the importance of remaining mindful and cautious when posting on social media. It is indeed probable for material published online in one’s personal capacity to have ramifications on employment terms.

Hope Earle Lawyers specialise in an array of employment law and business law concerns. Interested in learning more or seeking support in your legal proceedings? Contact our team of experienced, professional legal experts today.

Raffaella Oliva