If a worker posts social media comments that harass, intimidate or offend other workers, then that conduct may pose a risk to health and safety. But what can an employer do to manage that risk, particularly if the posting of comments happens outside usual business hours?  

Can an employer discipline a worker for out-of-hours conduct?

The courts and tribunals have made it plain that the critical issue to determine whether an employer can discipline a worker for conduct out of the workplace is whether the conduct has a sufficient connection to the workplace.

When determining whether the conduct has a sufficient connection, the employer must be satisfied that the duties and responsibilities of the worker, or some other aspect of the employment, are affected. Relevant factors will be the:

• nature of the employer’s business and what work the worker performs;
• nature and timing of the conduct; and
• effect and severity of the conduct.

A broad view of out-of-hours conduct is captured by this approach and has led to cases of dismissals where workers have been involved in misconduct outside of the office. For example, in John Keron v Westpac Banking Corporation the Fair Work Commission (FWC) upheld the dismissal of a long-serving employee who had indecently assaulted a colleague at a work function. The FWC found the conduct “occurred on the border between a work-related event and private activities”, and was sufficiently connected to the employment and warranted dismissal.

Importantly, before any disciplinary action is taken, it must also be evident that the conduct:

• was likely to cause serious damage to the relationship between the employer and the employee; or
• damaged the employer’s interests; or
• was incompatible with the employee’s duty as a loyal employee.

Out-of-hours conduct on social media

Although there is no limit on the circumstances in which social media conduct may be connected to work, some clearer examples of out-of-hours conduct on social media that may have a sufficient connection to the workplace include:

• inappropriate conduct, harassment or bullying of workers or persons connected with the employer;
• posting negative comments about the employer and/or work colleagues, clients and customers of the employer;
• social media activity that supports a finding of misconduct, e.g. posts that may evidence false medical certificates; and
• breaches of the employer’s confidential information.

In some cases, the connection to work may be less clear. In Ventia Australia Pty Ltd v Pelly (2023), the Full Bench upheld an order to reinstate Mr Pelly following offensive and sexually explicit posts in a private Facebook group named “Sickos Video Sharing Group”.

While the FWC supported Ventia’s decision to dismiss another employee whose posts in the group were made during work hours, in the case of Mr Pelly, most of the offensive posts were made out of hours and Ventia failed to establish a sufficient connection between the posts and the employment. Although the Facebook group comprised a large percentage of Ventia employees and the materials were explicit, there was no evidence that the posts affected the ability for Mr Pelly to perform the inherent requirements of his role nor that Mr Pelly caused damage to the employer’s interests. Relying on the out-of-hours conduct as evidence of a lack of confidence or uneasiness surrounding future conduct is not enough where an “actual repugnance” between the out-of-hours acts and the employment must be found.

How can you manage the risk of out-of-hours social media conduct?

The most important step to ensure the safety of your workers and others is to implement a broad social media policy. This policy should provide workers with certainty about the expectations, rights and obligations regarding social media use, and the impact it has on the employer.

A social media policy must be underpinned by a reasonable connection to work as it otherwise operates as a series of lawful and reasonable directions to employees in respect of their social media activity, both in the workplace and out of hours. A wilful breach of a lawful and reasonable social media policy amounts to a breach of a fundamental term of the employment contract, and allows an employer to take disciplinary action.