Is Your Employee’s Offensive Post Legal?

The answer may not be as straightforward as the legal system plays catch up.

Australians were transfixed this year by the controversy surrounding rugby player Israel Folau. He had his AUD 4 million contract torn up after he continued to make derogatory comments about homosexuals on social media.

Folau, widely considered to be Australia’s best rugby player, was sacked by Rugby Australia after taking to Instagram and posting a banner which said that groups of people, including “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, and idolators” would go to hell unless they repented.

It was a second strike for Folau, who made similar comments earlier in 2018. There are clauses on restricting his comments on social media written into the contract he subsequently signed with Rugby Australia.

Folau’s case was settled last week, and he received a payout, reported at AUD 8 million. But while that may be the end of this particular matter, the issues it raised continue.

The issues will remain somewhat unresolved because Rugby Australia's decision to settle meant that the organization’s claim - that Folau had breached his workplace contract - was not tested in the courts and could not clarify the law through establishing a precedent.

At the same time, the Folau case has become a rallying point for advocates of religious freedom, who believe that current anti-discrimination laws actually allow for discrimination against people with religious beliefs.

Religious groups helped sponsor around AUD 1 million for Folau’s defense case against Rugby Australia. The story even played into the Government’s attempts to create new religious freedom laws which have been shelved until next year due to the difficulty in achieving consensus.

The Folau case was front and center in the Australian media over 2019. Still, it was certainly not the only case where an employee's activity on social media put them at odds with their employers.

Do Public and Private Employees Have Different Rules?

In the digital age, the use of social media is blurring the line between the private and the public. On the one hand, you have the right to express an opinion; on the other, you have the responsibility towards an employer.

In the case of public sector employees, there has been a test case, and it was unequivocal. In August 2019, the High Court of Australia ruled against a former employee of the federal immigration department who made anonymous posts that criticized the government’s immigration policy.

The employee was sacked for breaching the public service code of conduct, which demands that public employees remain apolitical.

The High Court upheld the right to sack the employee, overturning a successful worker's compensation claim, which found that her sacking had breached implied rights to personal freedom.

That ruling gives some clarity to around 2 million people employed by federal, state, and local governments in Australia. But the situation for those in private employment remains more uncertain and likely to be decided on a case by case basis.

Is Social Media Public or Private?

Australia’s Fair Work Commission has usually ruled that all social media communications are in the public domain. Some recent decisions suggest that the argument of “reasonable privacy” also has some weight.

Macquarie University academic Louise Thornthwaite has studied these judgments and believes the goalposts are shifting.

In one judgment, for example, a worker who was dismissed won his case that he was sacked unfairly, arguing that criticism of two of his managers on Facebook was private because his page was not accessible publicly.

The ultimate point is that the Commission does recognize that employees have the right to comment and communicate with people online about the nature of their work.

A look at the Commission's judgments, however, doesn't reveal any apparent consistency in principle. It is the smaller details of each case which sways the ruling.

For example, a healthcare worker won his case against dismissal after he tagged two workers in a sexualized Facebook post. His dismissal was considered harsh, and he was awarded compensation of AUD 2,000.

In a later case, a worker at Hutchison Ports Australia lost his case and found the employer within their rights to fire him for sending pornography in a Facebook message to a group that included some colleagues.

Does Privacy Settings Matter?

The current legal situation would appear very open to interpretation and invites several conflicting arguments.

One of these is that by using privacy settings to stop employers from reading social media posts, employees are displaying an intent to make negative comments. This may seem obscure and convoluted, but some workplace lawyers believe this could be valid.

The implications of this uncertainty are that employers should have clear social media policies that are fully communicated to employees. In the best cases, these policies should be determined after discussion and negotiation with the workforce.

But as the Folau case showed, even contract clauses can come undone in some cases and produce results that are far away from anything anyone imagined.

Folau remains sacked, and his contract was torn up, but how can he be a loser when his settlement was a reported AUD 8 million, or around twice his original contract?

Critics frustrated by the result claim that he was actually rewarded for his offensive comments.

Not every case is as high profile and controversial as Folau’s. But the result – in which each side claimed victory – is symptomatic of the blurred lines which still exist on the issue of social media in the workplace.