Social media

To publish or not to publish? Social media activity outside working hours for public service employees and employers

Introduction

Social media is a fundamental tool used in the personal and professional life of individuals. Given the level of social interaction on online platforms, it is no surprise that there has been an increase in employee disciplinary action, including dismissals, following behavior on social media. . Surprisingly, many employers still do not have social media policies that adequately address off-hours behavior, even within the public service. This article provides a brief overview of social media standards for the public service, conduct during and outside working hours that can lead to disciplinary action, risks for public service employers in relation to dismissal complaints abuse, and recommendations for public service employees and employers to mitigate online risks.

Social Media Standards for Public Servants

While all employees must adhere to their employers’ policies and codes of conduct, as representatives of the executive branch of government and its functions, public servants are held to a higher standard. Society’s faith in the good administration of executive government is essential to the public perception of responsible government in a representative democracy like Australia. Whether a public servant is employed by local, state, or federal government, employees are expected to act in accordance with their responsibilities under workplace policies, codes of conduct, and legislation, including: Fair Work Act 2009 (Cth), state labor relations laws, and civil service laws.

The Australian Public Service Commission’s publication, “Social media: Guidance for Australian Public Service Employees and Agencies” (APS guidance), points out that although the Australian public service (APS) employees have a right of personal and political expression on social networks, this right must be weighed against the obligations of the APS in terms of employment. The APS Guidelines set out clear expectations that the online conduct of APS employees should adhere to APS values, including that “APS is non-partisan and performs its duties impartially and professional”.

When is driving considered at “work”?

The Fair Work Commission (CC) routinely hears cases involving allegations of bullying or sexual harassment, which often have the potential to damage an employer’s reputation. Social media is increasingly being used as a means to commit or prosecute workplace bullying and sexual harassment outside of the physical workplace. The CC considered in Bowker & Ors v DP World Melbourne Ltd T/A DP World & Ors, whether the two petitioning employees were bullied through a social media post. Even in 2015, the FWC considered that conduct on social media that involves bullying is not limited to when employees are physically at work, but rather that the employee will be considered at work whenever they perform a work, regardless of where or when the work is performed. Where offensive social media posts constitute bullying behavior, even if the posts were posted when the complainants were not at work, the conduct may be deemed to continue for as long as the posts remain on the platform. It follows that a worker need not be at work when a post is posted, as the post and any associated comments may be viewed later during working hours.

Employees and employers should be aware of the reputational damage that an inappropriate, offensive, or political social media post could have on an organization when it can be perceived as representative of the organization’s views and values.

Behavior outside working hours

Off-duty conduct that has a sufficient connection to an individual’s job may be relied upon to ensure that the employee complies with legislative obligations and internal workplace policies. In determining whether there is a “sufficient connection” between the conduct and the employment, the decision maker may refer to the following factors, as set out in the preeminent judgment of Pink vs. Telstra:

  • Considered objectively, is the behavior likely to seriously damage the relationship between employer and employee;
  • is the behavior likely to harm the interests of the employer (business or reputation); Where
  • is conduct inconsistent with the employee’s duty as an employee.

It is now settled law that an employer can discipline an employee for inappropriate social media activity when they meet the required test of having a “sufficient connection” to their job.

Whether an employee’s expression of a political opinion online may constitute misconduct subject to disciplinary action by the employer will depend on the facts of each case. The High Court case of Comcare vs. Banerji (Banerji case) considered whether the expression of a political opinion by an APS employee was subject to disciplinary sanctions. Ms Banerji posted over 9,000 tweets under the ‘@LaLegale’ Twitter account that criticized the former Department of Immigration and Citizenship (department). The Department became aware of the tweets after two other employees alleged that Ms. Banerji was using social media inappropriately in violation of the APS Code of Conduct. The ministry later fired Ms. Banerji on the grounds that she had violated the Civil Service Act 1999 (Cth) and the APS Code of Conduct. The High Court unanimously held that the impugned provisions had a purpose consistent with the constitutional system of representative and accountable government, namely the maintenance of an apolitical public service.

The Banerji case has not only been cited as authoritative in later judgments, but it has also been the subject of much scholarly conversation. For example, in their article, “Balancing the Responsibilities of Civil Servants with Implicit Freedom of Political Communication: What Can We Learn from Banerji?” Dr. Morris and Prof. Sorial analyze the facts and legal reasoning behind the Banerji case and provide commentary on the limits of freedom of political communication for public servants.

Unfair Dismissal Complaints and Employer Enforcement Risks

Employers need to understand that they risk being sued for wrongful dismissal if they fail to sufficiently balance an employee’s obligations to the employer against their rights at work. In Starr v Department of Human Servicesthe FWC found that the Department of Social Services (Central link), unfairly fired Mr. Starr for violating the APS Code of Conduct in connection with two online discussion forums where he made derogatory comments about Centrelink staff. Mr Starr had been a frontline employee of Centrelink for 21 years, and although there was evidence that Mr Starr had received the policy on social media, Mr Starr admitted that he had not. read. Therefore, he was unaware that he was not allowed to publicly criticize the government or government policy. Throughout the workplace investigation, Mr. Starr maintained that he felt genuine remorse and he accepted that he would be disciplined for his behavior, but not fired. The FWC found the dismissal to be severe given the extenuating circumstances of the case.

In Singh v Aerocare Flight Support Pty Ltdthe FWC also concluded that the employee was unfairly terminated due to online behavior where the employer failed to consider mitigating factors, but also alternative measures to termination.

These two cases underscore that, while a strong social media policy is beneficial to employers in the context of disciplinary action, the policy cannot be used to circumvent the employer’s obligation to conduct a disciplinary process. fair and procedurally thorough investigation with reference to the rights of the employee in the workplace.

Conclusion

Public servants must be aware of the much greater obligation to ensure that their conduct on social media reflects the impartiality and apolitical nature of the public service. Employers should be aware that employee conduct on social media may impact their obligations to other employees, the reputation of the organization, and is not outside the scope of disciplinary action.

Employers should have a well-written social media policy that clearly defines social media, acceptable and unacceptable behaviors, and incorporates other workplace policies such as anti-bullying, anti-discrimination and anti-bullying policies. sexual harassment. The policy must clearly state the consequences of a violation of the social media policy. Employers should also ensure that employees are not only aware of their social media policy, but have read it, understand it, agree to abide by it, and understand that it will apply to all staff. While social media is a useful tool, it’s important that both employers and employees understand the risks that come with posting controversial material online.