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If I post something on Facebook, can it impact my employment?

The short answer to this question is yes. The Fair Work Commission in Queensland heard the case of Thompson v 360 Finance P/L [2021] FWC 2570, where it was decided that serious misconduct spans to the cyber world when it concerns colleagues or the Company itself.

So, what does Fair Work say about this?

In this case, the Applicant claimed he was unfairly dismissed after he posted memes on his personal Facebook Page. The commission in Queensland found that as one of the memes contained sexual connotations to a colleague, this involved the workplace.[1] The Applicant argued that as he did not have the Company listed as his employer on his Facebook, the public would not know who it was about. The Applicant had also received previous formal warnings for sexual and derogatory comments in the past.[2]

Fair Work has a consistent approach to deciding matters with regards to digital communication and serious misconduct. Serious misconduct is defined as conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract as per regulation 1.07(2)(a) of the Fair Work Regulations.

A case previously decided by the Commission in regards to posting on Facebook involved an employee making negative and threatening comments about a colleague on Facebook. The Commission found that threatening another employee is a serious issue and constitute serious misconduct. Therefore, the Commission has made it clear that when alluding to workplace matters in the digital realm, an employee is held to the same code of conduct as if it were in person.

The Applicant’s primary argument was that this conduct was not in fact a breach of the company’s code of conduct as “all sorts of conduct’ was permitted in the workplace include racially provocative emails, racist secret Santa gifts and aggressive or abusive conversations with clients and suppliers.[3]

The Commission did acknowledge that the Company’s standard of conduct fell short of the conventions expected in workplaces. However, they stated that the Applicant’s conduct was “nonetheless plainly inappropriate, if not also unlawful”.[4]

What if I posted it out of office hours?

As decided by Fair Work, the employer only has the right to extend supervision over the private activities of employees in exceptional circumstances.[5] In Rose v Telstra, three circumstances were reaffirmed by Fair Work.[6] These are:

  • That the conduct by the employee, objectively must be likely to result in serious damage to the relationship between the employee and employer; or
  • That the conduct damages the interests of the employer; or
  • That the conduct is incompatible with the employee’s duty as an employee.

Therefore, as social media is evidentiary in nature, meaning there is proof of what one posts, it is likely that supervision can be extended to out of hours conduct in regards to social media.

Possible arguments for the Applicant

The Fair Work Commission may take into account differential treatment of the Applicant compared to other employees. [7] In Fagan v Department of Human Services, the Commission found that the conduct of 2 employees was comparable and that there was in fact differential treatment and therefore, the dismissal was harsh in the circumstances.[8] The Applicant would have to prove that another employee made similar comments or comments that offended another employee, and was not terminated for doing so.

However, as the Applicant had received formal warnings for derogatory and sexist comments in the past, this would mitigate the argument of differential treatment.

What else does the Commission in Queensland take into account for serious misconduct?

Fair Work Queensland also considers work performance or history, procedural fairness and the impact of the dismissal on the employee’s personal or economic situation. These matters may help the Commission determine whether termination was harsh, unjust or unreasonable in the circumstances.

Summary Dismissal

The Applicant was summarily dismissed as a result of the serious misconduct. A summary dismissal is the harshest form of termination of employment. When a person is summarily dismissed they are not given notice or payment in lieu of notice period. They may also have their entitlements removed. Therefore, Fair Work in Queensland may consider the harshness of this type of termination in proportion to the misconduct.[9]

Conclusion

After more than a year of working from home in Queensland and relying on social media more than ever as a form of communication, we should be aware of its permanency and its implications in the professional sphere of our life. Cyberspace is an extension of our actual life and therefore, as Fair Work has stated, an employer’s code of conduct is applicable to social media in the same way as it would be in person. If allegations of serious misconduct have been issued against you and you’re in Queensland, give us a ring on 1800 333 666.


[1] Thompson v 360 Finance P/L [2021] FWC 2570

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Appellant v Respondent, Print R1221 

[6] Rose v Telstra Corporation Limited [1998] Print Q9292

[7] Sexton v Pacific National (ACT) Pty Ltd, PR931440

[8] Fagan v Department of Human Services [20112] FWA 3043

[9] Fair Work Act 2009 (Cth) s 387(h)

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