The Fair Work Commission (FWC) recently upheld the decision to dismiss an employee who made highly offensive posts on his personal Facebook account and his employer's internal messaging service in Conrad John Corry v Australian Council of Trade Unions [2022] FWC 288. The employee published a series of posts around the time of anti-vaccine protests in Melbourne. The FWC found these various posts were in breach of ACTU's values, public position, policies and the employee's contract of employment.
Evidence was given which indicated that the employee's various posts promoted civil disobedience in respect of pandemic restrictions, endorsed violence against police officers and minority groups, mocked victims of domestic violence and included anti-Semitic, homophobic, transphobic, and racist themes.
Obviously his employer was concerned that the employee's social media posts might negatively impact on;
- the health and safety, including the psycho-social wellbeing, of staff, workers who called the Support Centre, and Australian workers more broadly; and
- the reputation of the employer, which is a values-driven and progressive organisation.
The FWC found that the right to hold and express strongly held views did not mean an employee has the unqualified right to share views which are contrary to the interests and values of their employer.
The employee argued that his Facebook account did not include pictures of himself, identify his geographic location nor did it identify who his employer was. The employee did not accept that his account would be viewed widely and linked back to his employer.
The FWC considered the employee's anonymity in its decision ultimately disagreeing with this line of reasoning. The FWC did not place much weight on the number of Facebook friends the employee had nor who had access to the posts. Instead, what mattered was that the posts could cause harm to the employer and were made publicly available on social media platforms.
In determining whether the employer had a valid reason for the dismissal, the FWC looked at whether the conduct was contrary to the employee's contract of employment and whether the out-of-hours social media posts were likely to cause damage to the employment relationship and the employer's interests.
Importantly the FWC drew attention to the employer's social media policy stating that in circumstances where the employer takes issue with an employee's private out-of-hours social media activity, the absence of specific reference to such activity within the policy is an evident deficiency.
While the ultimate decision of the FWC did not critically rely on the existence of a clause in the social media policy governing out-of-hours social media usage, the FWC nonetheless highlighted its importance in determining whether such behaviour was incompatible with the employee's duties to the employer.
This case highlights the need for employers to ensure that they have up-to-date social media policies and ensure the inclusion of clauses which expressly apply to out-of-hours conduct that may bear upon the employment.
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