Depending on the nature of the comment, it is possible for an employer to fire an employee for comments made on social media. This includes Facebook, Twitter, MySpace, blogs, online forums and email. Whether or not an employer is entitled to fire you for comments on social media depends on a variety of circumstances including:
- the nature of the comments made;
- the intention behind publishing the comments;
- when the comments were made;
- who had access to view the comments;
- the extent to which an individual or company is identified in the comment;
- the provisions of any company code of conduct;
- the provisions of any contract of employment; and
- any company guidelines.
What sort of comments can get me fired?
Whilst Australian law recognises the freedom of information, opinion and expression, the Australian Constitution, unlike the American Constitution does not provide an unfettered right to freedom of speech. For example, pursuant to the Racial Discrimination Act 1975, it is unlawful to do an act that is likely to offend or insult a person or group because of their race or ethnicity. Accordingly, racist or sexist comments, or comments intended to incite violence or fear, may be considered unlawful and give rise to dismissal.
Nowadays, as social media becomes a significant and valuable instrument for businesses, most companies will often include social media clauses or guidelines in their contract of employment or code of conduct. Comments on social media that contravene any of these provisions may entitle an employer to fire an employee. These provisions are often paramount in considering whether an employer is entitled to fire an employee.
Whether or not a comment breaches company policies however will depend on the facts of the situation.
Examples of comments that have resulted in lawful dismissal include commentary that:
- mocked or criticised company policies;
- expressed strong political views;
- failed to uphold the integrity or reputation of the company;
- concerned an employer or employee of the company; or
- insulted or threatened another employee.
The mere failure to remove commentary at the request of a company may provide sufficient grounds for dismissal.
Nonetheless, it appears that in order to terminate someone’s employment on the basis of social media comments, the comments must identify either the company or specific staff members. Comments that are vague or non-descript have been held to be insufficient grounds for dismissal.
What if I didn’t make the comments whilst at work?
Given the nature of the internet and the reliance that business places on social media, it is possible to be fired for comments made outside of work hours, or outside of the workplace. Social media obligations often fall within the scope of obligations that a company may place on its employees outside of working hours.
What if I only post my comments on private pages?
Firstly, there is no recognised right to privacy in Australian law. Accordingly, a Facebook page or Twitter feed only accessible by approved friends, or set to the maximum privacy settings, may be insufficient to prevent termination. Even anonymous blog posts have been the subject of lawful dismissals.