Employers are well within their rights to discipline employees who misbehave over social media, even when the conduct occurs ‘out of hours’ during what is ordinarily private time. However, for employer intervention to be justified, it is necessary to establish a nexus between the alleged misconduct and the employment relationship.
In a recent case before the FWC, an employee was dismissed after he shared what was described as a “disrespectful and disturbing” pornographic video via social media with friends, including 19 male and female work colleagues. The employee had been heavily drinking that evening and claimed that he only wanted to send the video to “some of his mates” but hit “send all by mistake”. A female employee who received the video responded “Are you serious? Mate don't send me that shit". The worker posted an apology on his Facebook page the following day.
In alleging that he was unfairly dismissed, the employee argued that Hutchison Port Holdings had no valid reason to dismiss him because there was an insufficient connection to his work. Further, the employee maintained that whatever occurs out of hours between an employee and their friends is a matter for those interested and does not warrant employer intrusion. It was argued that the company misinterpreted its own authority and acted contrary to its own policies when it investigated the matter in the absence of a complaint.
However, the company submitted that if something occurs outside of work, and there is a nexus with the workplace which impinges on the rights of employees, then the employer is entitled to investigate those matters. The company referred to its duty of care and argued that it had a responsibility to respond to the video on behalf of its employees who may have been offended by its content.
The FWC agreed with the position of the employer and found that the relevant nexus was established, particularly as 19 of the 20 video recipients were Hutchison employees. It was concluded that by sending the video, the employee failed to act in accordance with the standards his employer expected of him and his dismissal was upheld.
Lessons for employers
- Implement a well-drafted code of conduct and social media policy outlining your expectations about appropriate and inappropriate behaviour both during and out of work hours.
- Social media policies must account for all known platforms (i.e. Facebook, Instagram, Snapchat) and should be regularly reviewed and updated to keep up with technological developments.
- Ensure that employees are well trained on policy content and are regularly informed of the consequences that follow when policies are breached.
- Be consistent with the implementation of your policies and remember that the punishment should fit the crime.
- Affording procedural fairness to all employees is necessary when investigating policy breaches and during any subsequent termination.
 Luke Colwell v Sydney International Container Terminals Pty Limited  FWC 174 (9 February 2018).