To post or not to post – that is the Question?

A practical guide for employers and employees on the use of social media

Your employees are on social media. Some are posting opinions, commenting on politics, tagging colleagues, and occasionally saying damaging things about your business or their colleagues. You already know this. What you may not know is where the law draws the line between a private life lived online and conduct that gives an employer grounds to act.

For employees, the anxiety sits on the other side: can my employer really reach into my personal accounts, on my own time, and hold me accountable for what I say there?

When does a personal post become a workplace issue?

Not every regrettable tweet or inflammatory Instagram story is your employer’s business. Australian employment law has long recognised that what you do outside working hours is, in principle, your own affair. An employer can only act on out-of-hours conduct (including social media activity) where there is a sufficient connection between that conduct and the employment relationship.

The test is simple: is the post connected to the employee’s employment or does the post damage the employment relationship, the employer’s reputation, or the employer’s legitimate business interests? If the answer is yes, the employer has a foothold. If the answer is no, the employee’s private life stays private, regardless of how distasteful the content might be.

What does the Commission actually look at?

Whether the employee is identifiable as being connected to the employer — through their profile, their bio, a uniform in a photo, or simply being well known. Whether the post was genuinely private or broadcast to the world. The nature of the post and its possible impact on the employer.

A private account with thirty followers having a rant is a very different issue from a public account posting inflammatory content, linked back to the employer’s brand. The employer bears the burden of demonstrating the nexus.

What can employees post?

More than what most employers would like. Less than most employers assume. 

Political and social commentary?

Employees are entitled to their views, including on politics, and the employer cannot punish an employee for holding them. The Fair Work Act prohibits adverse action on the basis of political opinion. Disagreeing with your employees ‘s views is not a lawful basis for discipline, but this protection has parameters.

Where political commentary becomes so extreme or inflammatory that it genuinely damages the employment relationship, or the reputation of the employer, the employer may have a basis to act. The High Court upheld the termination of a public servant who posted anonymous political commentary found to be inconsistent with her code of conduct obligations — a reminder that the right to political expression, however important, does not exist in a vacuum. It coexists with other duties owed to the employer.

Criticism of the employer?

An employee who posts a genuine complaint about safety, underpayment, or mistreatment may well be exercising a workplace right. Disciplining them for it risks a general protections claim, because the Fair Work Act 2009 (Cth) (Fair Work Act) shields employees who make complaints about their employment.

But grievance does not grant immunity. Posts that are so abusive, intemperate, or widely broadcast that they shatter the trust inherent in the employment relationship will not be saved by the fact that the employee had a legitimate underlying concern. The Commission has upheld dismissals for derogatory Facebook posts about an employer (even where the audience was small) because the content was so toxic that the ongoing relationship became untenable. It is also worth noting that many workplace policies contain codes of conduct which regulate how one should behave in the workplace, including online.

Offensive, discriminatory, or harassing content?

Social media content that targets colleagues, clients, customers, suppliers, or protected attributes are the most straightforward category for employers to regulate. If online conduct amounts to bullying, harassment, discrimination, vilification, or sexual harassment, the fact that it occurred outside the confines of the office building does not automatically recuse the employee of their poor behaviour.

The relevant question is whether the conduct has entered the workplace, affected another worker, or exposed the employer to legal or reputational risk. This includes racist, sexist, homophobic, threatening, or humiliating posts about colleagues; sharing private images or messages; dogpiling a colleague in a group chat; or using a personal account to continue a workplace dispute.

The positive duty matters here!

Although employers should not treat every post with which they may not agree as automatically dismissible, they should treat this category seriously because their obligations do not stop at the office door. The Fair Work Act now expressly prohibits sexual harassment in connection with work, and the broader Respect@Work reforms sit alongside work health and safety and anti-discrimination duties that require employers to take active steps to prevent relevant unlawful conduct, not simply respond after harm has occurred.

Although the positive duty is often discussed in the context of physical workplaces, it is not limited to conduct that occurs at a desk, on a worksite, or during rostered hours. Online conduct can be “in connection with work” where it involves colleagues, work events, client relationships, work group chats, professional networking platforms, or an employer-branded online presence. That means social media policies, reporting channels, training, moderation of work-related platforms, and prompt responses to online harassment are part of the employer’s prevention framework.

Contacting clients on social media?

Whether an employee is sending direct messages, connecting on LinkedIn, or engaging with a client on another platform, the starting point should be caution. During employment, contact with clients through social media should remain professional, necessary, and clearly connected to the employee’s role.

The position can become even more sensitive after employment ends. Contacting former clients through social media may be a breach of non-solicitation provisions, or restraint clauses in the employee’s contract of employment. Employees should therefore think carefully before initiating contact, as such contact may result in legal proceedings. Employers should ensure any post-employment restrictions are clearly drafted, reasonable, and understood and include contact via social media.

What can employers regulate?

A good social media policy does not try to ban opinions. It explains the conduct that creates work-related risk and supports the employer’s prevention obligations. Problematic conduct includes: identifying the employer while making damaging statements, disclosing confidential information, harassing or bullying colleagues, engaging in sexual harassment or sex-based harassment online, using social media excessively during work time, impersonating the business, speaking on behalf of the business without authority, or engaging in conduct that undermines trust and confidence.

The policy should be clear, lawful, proportionate, and consistently enforced. Employees should receive it, understand it, and be trained on it. A policy that sits unread in an induction folder is much weaker than one that has been explained, acknowledged, and applied consistently. Employers should also avoid overreach. A clause that purports to control all personal online activity, regardless of connection to work, is unlikely to be useful and may invite challenge.

Before posting as an employee…

Ask four questions. Can I be identified as connected to my employer? Am I talking about colleagues, clients, customers, or internal matters? Would the post undermine trust if it was screenshotted and sent to HR? Am I making a protected complaint, or am I venting in a way that could be seen as abusive or damaging? If the answer to any of those questions is yes, slow down.

The practical bottom line…

Employees do not surrender their private lives when they take a job. Employers do not lose the right to protect their business, staff, clients, and reputation simply because misconduct happens online. The line is not whether the account is personal, the post was made after hours, or the employee says it was a joke. The line is whether the conduct has a real and sufficient connection to the employment relationship.

For employers, the safest position is to set clear expectations before a problem arises and to respond proportionately when it does. For employees, the safest position is to remember that “personal” does not always mean “irrelevant to work”. Social media may feel informal, temporary, or private, but in employment law it can become evidence very quickly. 

How we can help

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.