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Thornthwaite, Louise --- "Social media and work: an emerging privacy" [2016] PrecedentAULA 41; (2016) 135 Precedent 8


SOCIAL MEDIA AND WORK: AN EMERGING PRIVACY

By Louise Thornthwaite

Soon after social media (SM) emerged, it became an issue in unfair dismissal cases, with industrial tribunals having to consider the nature and implications of employees’ online posts. Employee comments posted when they were off-duty, on sites such as Facebook, Twitter and blogs, posed interesting questions. Scholars wrote of the blurring of the distinction between employees’ public and private lives, as employers argued that privately aired opinions had a sufficient connection with employment to constitute or otherwise serve as evidence of misconduct warranting dismissal.[1]

Unfair dismissal claims involving SM use in Australia and other western countries have typically concerned online posts and discussions of employees in their personal lives.[2] In early cases, tribunals in most western countries typically determined that employee comments on SM were, by their very nature, in the public domain. Writing on Facebook or a blog effectively constituted a broadcasting to the world at large. The individual’s claim to privacy was, therefore, difficult to argue persuasively. Assertions of potential damage to employers’ reputations were also difficult to counter. In some cases, individuals successfully argued that the process of their employer gaining access to their posts had contravened their privacy, or that they had not understood the privacy risks involved.[3] However, these cases typically involved applicants of mature age, ‘digital immigrants’, who were less familiar with the technology than ‘digital natives’, born in the internet age.[4]

Prior to the contemporary explosion in SM, courts and tribunals had developed boundaries for when an employer could exercise control over an employee’s private life. While employees had no general right to privacy as such, they were able to criticise colleagues and managers, and express dissatisfaction with work and working conditions generally, without sanction. Cases such as Blyth Chemicals v Bushnell[5] and Rose v Telstra[6] established clear principles. Rose v Telstra defined three limited circumstances in which off-duty conduct may result in an adverse finding for an employee, such conduct:

• when viewed objectively, is likely to cause serious damage to the relationship between the employer and employee; or

• damages the employer’s interests; or

• is incompatible with the employee’s duty as an employee.[7]

Yet, in a number of early decisions in Australia, the Fair Work Commission (FWC) suggested that in the case of SM use, an employee may never be ‘off-duty’. In cases such as Mayberry v Kijani Investments, Dover Ray v Real Insurance, O’Keefe v The Good Guys, and Little v Credit Corp Group Limited,[8] the FWC accepted posts on Facebook and other SM as grounds for dismissal. More recently, however, in considering SM posts, industrial tribunals have begun imposing boundaries between the public and private worlds of employees. In some decisions, industrial tribunals have rejected the view that SM comments are necessarily in the public domain. They have also expressed limits to the extent to which SM policies can police employee behaviour when off-duty.

Sometimes, online communication is clearly inappropriate and harmful to colleagues, an organisation and an industry, but sometimes it is something to which colleagues and management simply take offence. In recent cases, a clearer line of authority has been emerging which provides guidance to employees and employers on certain issues in relation to the circumstances in which a termination involving Facebook or some other form of SM will breach unfair dismissal law.

This article examines four recent FWC decisions. The first two cases concern the expression of opinion about work and politics when off-duty and the second two, the manner of an employer’s access to an employee’s private online posts.

EXPRESSING OPINIONS ABOUT WORK WHEN OFF-DUTY

Through SM policies, many employers have established an avenue for the lawful termination of employees who express opinions outside work about working conditions and treatment at work, by extending provisions to include comments made online at any time.[9] Two cases which the FWC decided in early 2016 shed light on its emerging approach to the circumstances in which an employer can sanction a worker for online comments expressing opinions about work and work-related issues in their personal lives.

Robyn Vosper v Angie’s Cake Emporium[10]

Robyn Vosper was a permanent part-time sales assistant and cake decorator in a cake shop. Vosper had worked in the shop for three years. Two months after a transfer of the business, the new owners terminated her employment. Her new employer, Angie’s Cake Emporium (Emporium), gave Vosper two reasons for the termination without notice. First, she had breached a confidentiality request, by sending private Facebook messages concerning her treatment at work and employment arrangements to her sister, the former owner of the business. Second, Vosper’s performance had been poor.

In the Facebook messages, Vosper discussed changes which the employer had proposed to her employment arrangements. Emporium had told Vosper that her part time role was redundant and offered her casual employment on a lower base pay rate. On Facebook, Vosper informed her sister that, ‘my suspicions about being forced to casual were right. Last night I was given a week’s notice on my part-time job and offered a casual position.’[11] Vosper’s sister then stated to another employee that, ‘Robyn isn’t being treated very well at all.’ Later that day, Vosper also posted news that she was ‘finishing up at Angie’s at the end of the week. Time to move on with a new focus.’[12]

In evidence, Emporium suggested that, not only had the termination of Vosper’s part-time appointment been due to redundancy resulting from changed business requirements, but due to poor performance. The FWC found that given the lack of consultation about the proposed redundancy, the termination was not a genuine redundancy. Moreover, had there been appropriate consultation the parties might have reached alternative mutually agreeable arrangements. In addition, the FWC held that the dismissal had breached the ‘other dismissal’ section of the small business code because of the absence of both a warning and an opportunity to respond to the proposal to terminate for reasons of performance or conduct. Further, the FWC held that there was a lack of evidence pertaining to poor performance.

In regard to Emporium’s claim that the Facebook conversation had constituted misconduct, the FWC held that there was nothing derogatory or offensive in Vosper’s statements, and that no confidential business information had been published. Thus, the evidence did not support a finding that there was a valid reason for termination because of serious misconduct.

The significance of this case for the question of the public/private boundary lies in the FWC’s findings concerning the airing of opinions by employees outside the workplace. The Commission stated that:

‘An employee has the right to complain about their employment rights and their treatment at work. We do not live in a society where employees are prohibited from discussing their employment status or their treatment at work with others.’[13]

As well, the FWC examined the statement made by Vosper’s sister about her not being treated well, and deemed this an ‘expression of opinion’ that was neither fanciful nor outrageous in the circumstances. The decision to replace Vosper’s part time employment with casual work ‘on its face could be perceived as the employee not being treated very well at all’.[14] This decision suggests that, though the employer might take offence, employees’ online comments about work issues when off-duty may not necessarily provide grounds for dismissal.

Daniel Starr v Department of Human Services[15]

Traditionally, public servants have been held to higher standards of behaviour when off-duty. In this case, Starr had worked as a frontline Centrelink officer for 21 years when he was dismissed for comments on two SM sites over a three-year period. On two sites, Whirlpool and Sportal, Starr had engaged in discussions about social security and Centrelink, including application-processing times at Centrelink, the poverty cycle of clients, mental health and federal government budgets. The Department dismissed Starr on the basis that he had engaged in inappropriate behaviour, inconsistent with Australian Public Service (APS) Values and the Code of Conduct, as well as with the Department’s policies. The Department determined that the online activity had brought the public service into disrepute and raised serious concerns about Starr’s ability to fulfil his duties impartially.

The FWC found that Starr’s dismissal was harsh on several grounds, including that many of the grounds relied upon for his dismissal were not justified. Accordingly, though some of his conduct was inappropriate, the penalty of dismissal was disproportionate to the gravity of his misconduct. The FWC also decided that there was no evidence of actual damage to the Department’s reputation or perceived impartiality, or any basis for concluding that online comments had or would ever reflect Starr’s work performance.

In its consideration, the FWC observed that all the conduct had occurred outside work and hence raised the question of when an employer is entitled to regulate and take disciplinary action in relation to off-duty behaviour. The FWC applied the principles in Rose v Telstra, that there is not usually a valid reason for dismissal unless the employee’s conduct falls within the circumstances there outlined. The FWC also followed McManus v Scott-Charlton,[16] which held that the scope of employer control over private conduct may be greater in the case of public servants for reasons of public interest. On that basis, the Commission determined that if, in a non-trivial way, Starr had breached the Public Service Act 1999 (Cth) (PS Act) or any policy reasonably giving effect to a requirement under it, then this could constitute a valid reason for dismissal.

The Department argued that Starr’s posts breached the provision of the PS Act which requires employees to uphold APS values (s13(11)(a)), one of which is that the APS is apolitical (s10(5)). The FWC held that Starr did make online comments that breached APS values and policies. For example, when commenting about the processing time for claims, Starr described the length of time as ‘utterly disgraceful’ and claimed he ‘was embarrassed to work there’. The FWC found the first comment clearly excessive and that the latter suggested there was something shameful about working for the Department.

Nonetheless, the FWC stated, for Starr’s political comments to constitute a valid reason for dismissal, the PS Act:

‘would have to be construed expansively so as to confer on APS departments a general right to discipline their employees for political speech communicated outside of working hours. I do not consider that the provisions should be so expansively construed.’[17]

The FWC based this conclusion on the recognition in Australian law of a common law right to freedom of expression, and the High Court ruling that there is an implied freedom of political communication in the Australian Constitution. The FWC determined that the provisions relied upon in the PS Act were ‘not sufficiently clear and unambiguous to displace the assumption that Parliament did not intend to interfere with the common law right, at least not in such a sweeping way’.[18]

The FWC went on to interpret the meaning of ‘apolitical’ in s10(5) of the PS Act to refer to political impartiality in the exercise of APS functions.

‘The provision is not, when read with s13(11)(a), apt to be construed as requiring that all APS employees be apolitical at all times outside of working hours ... in the case of the vast majority of public servants who perform routine administrative tasks ... it is difficult to envisage any circumstances in which the robust expression of political views and criticism of the government outside of work could have an impact on the performance of their duties.’[19] (emphasis added)

The Department argued, in the alternative, that if criticism of the government of itself did not constitute a valid reason for the dismissal, the PS Act did prohibit criticism that was ‘disrespectful of the government’. The FWC rejected the proposition that the APS value of ‘respecting all people’ is to be read in conjunction with s13(11)(a) ‘as requiring all members of the APS to be “respectful” at all times outside of working hours, including in their expression of their attitude to the government of the day’ (emphasis added).[20] The FWC added:

‘It would require express and absolutely unambiguous language in the statute to justify the conclusion that such a gross intrusion into the non-working lives and rights of public servants was intended.’[21]

These two cases provide guidance on the circumstances in which employers can sanction employees for SM use in their personal lives. The FWC decision in Daniel Starr establishes that the PS Act does not reach into employees’ private lives to the extent of prohibiting the expression of political opinions generally and, specifically, criticism of government, except where the expression of views has an impact on the performance of their duties. In Robyn Vosper, the FWC signalled that employees have a right to discuss their working lives when off-duty in SM forums as in other locations, except under specific conditions such as where a breach of confidentiality is involved.

OBTAINING INFORMATION IN INAPPROPRIATE WAYS

When employees discuss work issues in forums such as Facebook, typically they do so under an assumption of privacy, or at least a privacy limited to ‘friends’. Where the individual has applied privacy tools, such as passwords, the question of how an employer has accessed the comments becomes an issue. In several recent cases, the FWC has deemed unpermitted intrusions inappropriate and/or unlawful.

Judith Wilkinson-Reed v Launceston Toyota[22]

The first FWC case to examine this issue comprehensively was Wilkinson-Reed v Launceston Toyota in early 2014. Judith Wilkinson-Reed had been employed as Human Resource Manager at Launceston Toyota for more than 18 years, when the company terminated her employment without notice on 7 August 2013. Two days earlier, Ms Wilkinson-Reed had received a letter from the dealer principal, Mr Sam Nixon, notifying her of concerns with her behaviour. Of particular concern was that she had communicated with Mr Nixon’s estranged wife on Facebook about ‘confidential’ workplace matters. This was allegedly contrary to his directions and in breach of the company’s SM policy. Mr Nixon dismissed Ms Wilkinson-Reed on the ground that her Facebook disclosures constituted a breach of contract amounting to serious misconduct.

Ms Wilkinson-Reed and Mrs Nixon were friends. On Facebook, Ms Wilkinson-Reed had referred to several matters concerning Mr Nixon. For example, she informed Mrs Nixon that she had heard that within the Launceston car world, Mr Nixon was considered a ‘tosser’. She also mentioned that some employees were keen to do a forthcoming staff survey because ‘they can’t wait to tell Toyota anonymously what they really think of him. He’s going to get the biggest shock!’[23]

This was a private conversation which Mr Nixon could not have accessed without Mrs Nixon's password. Mr Nixon admitted to using Mrs Nixon's password to access her Facebook account and to having changed, more than once, her marital status on her Facebook page from ‘single’ to ‘married’. It was while accessing his wife’s account for this purpose that Mr Nixon read Ms Wilkinson-Reed’s comments.

The FWC held that the Facebook conversation did not breach Launceston Toyota’s SM policy because, while it ‘may have been conducted by means of social media it was in the manner of a private email’.[24] The comments would have remained private had Mr Nixon not improperly accessed his estranged wife’s private Facebook account. The FWC stated:

‘It was apparent that the applicant and Mrs Nixon were good friends who believed that they were participating in a private conversation ... The comments that were made during the course of that conversation were not made as a post on a Facebook “wall” that was then accessible to the “Friends” of either party ... It is plainly evident that it was not the intention of either woman that the content of the conversation take place in the public domain, opening the views of the women up for scrutiny and comment.’[25]

In ruling that the termination of Ms Wilkinson-Reed had been unfair, the FWC held that if there had been a breach of confidence, it was not serious and certainly not sufficiently serious to justify termination of employment.[26] Commissioner Deegan also commented on the appropriateness of policies which regulate an employee’s private communications regardless of connection to the employment relationship. He stated:

‘it is unlikely that a policy that was an attempt by an employer to control the contents of private emails between their employee’s third parties, written in their own time and using their own equipment, would be found to have the requisite connection to the employment relationship such that an employee could be terminated for a breach’.[27]

In several cases, the FWC has noted that employers must accept that employees might express adverse opinions about them. In an earlier decision, Stutsel v Linfox,[28] the FWC suggested that, in this digital age, employers may need to develop thicker skins. In Wilkinson-Reed, the FWC again commented that employee criticisms of employers were expected. The Commission stated: ‘I do not think discovery by a manager that an employee holds a low opinion of him is sufficient reason to terminate the employment of a long serving employee with an impeccable employment record.’[29]

The FWC also commented on the reasonableness of an employer’s direction that an employee not communicate with particular persons in their personal life. The FWC observed that generally, employers had no right to determine whom employees can contact privately. Commissioner Deegan stated:

‘I should also add that, had the direction been that the applicant not communicate with Mrs Nixon at all, I would not have been satisfied that such a direction was reasonable. I see no circumstance that could allow an employer to prohibit an employee from contact with another person merely because a senior manager of the employer had some personal issue with that other person. To find some connection between such a direction and the existence of a legitimate right of an employer to intervene in the personal life of an employee would be extremely difficult’.[30]

Ms Kim Fallens v Serco Australia[31]

This is the second recent decision in which the FWC has strongly indicated that the circumstances in which an employer gains access to online posts is a key consideration in an unfair dismissal case. Ms Fallens had been employed as a prison officer for more than eight years until Serco terminated her employment on the basis of four grounds of misconduct. The misconduct essentially concerned the obtaining and transmission of confidential documents from the prison by covert means. A transcript of Facebook communications from Ms Fallens’ private account was the basis of one of the grounds of misconduct.

At issue was the means by which Serco obtained access to the password-protected Facebook account. Ms Fallens’ estranged husband had accessed her home computer and her Facebook page. The ‘clearly aggrieved’ husband had done so ‘in the course of looking for evidence of an affair’.[32] Mr Fallens had supplied the transcript to Serco management. Ms Fallens argued that the Facebook conversations were improperly and/or illegally obtained without her consent, in breach of s440A of the Criminal Code Act Compilation Act 1913 (WA) (CCA Act).

The FWC found:

‘on the balance of probabilities that the private Facebook conversations were obtained in breach of the CCA Act by Mr Fallens and subsequently handed to Serco. If I am in error in this respect regarding Mr Fallens’ access I am also satisfied that the access was inappropriate, given the state of matrimonial affairs between Mr and Ms Fallens, and that acceptance of the material by Serco was also inappropriate. Impropriety between spouses involving unauthorised access to and distribution of private documents should be discouraged. The social consequences of such conduct cannot be positive.’[33]

The FWC concluded that, in providing access to this information, Mr Fallens intended to cause harm to his estranged wife and bring an end to her employment. Given those circumstances, Senior Deputy President Drake determined that he could not place reliance on the transcripts and did not admit them into evidence.

These two cases demonstrate that the way an employer gains access to the off-duty SM posts of an employee will affect whether the posts are admitted as evidence and the weight placed upon them. In particular, as Wilkinson-Reed indicates, the FWC will deem employee discussions on password-protected forums to be private. Further, the FWC is likely to hold that it is inappropriate for an employer to rely upon an employee’s online comments to terminate employment when access was gained through an aggrieved family member.

CONCLUSION

While SM is now an entrenched feature of society, the rapidity with which it has become an issue in employment law has left many employers playing catch-up. The FWC and other tribunals initially tended to consider that when employees communicated in online forums such as Facebook, Twitter and blogs, they were broadcasting to the world at large. This had the potential to shift the established boundary in the employment relationship between an employee’s public and private lives, enabling employers to extend control over off-duty conduct. Recent decisions indicate that the FWC is curtailing this shift. The four decisions examined are representative of this approach. They establish that, generally, employees can expect comments on password-protected sites to be considered private, and that employees have a right to express political comment and criticism of working conditions and arrangements when they are off-duty.

Louise Thornthwaite is an Associate Professor in the Department of Marketing and Management at Macquarie University. EMAIL louise.thornthwaite@mq.edu.au.


[1] Thornthwaite, L., 'Social Media, Unfair Dismissal and the Regulation of Employees' Conduct Outside Work', Australian Journal of Labour Law, Vol. 26, No. 2, Oct 2013: 164-84.

[2] Ibid.

[3] For instance: Stutsel v Linfox Australia Pty Ltd (2011) 217 IR 28; [2011] FWA 8444.

[4] Prensky, M., (2001) ‘Digital Natives, Digital Immigrants’, On the Horizon, MCB Universal Press, Vol. 9, No. 5, October 2001.

[5] [1933] HCA 8; (1933) 49 CLR 66.

[6] [1998] AIRC 1592.

[7] Ibid.

[8] Mayberry v Kijani Investments Pty Ltd ATF The Dawe Investments Trust Subway Wallsend

t/as Subway [2011] FWA 3496; Dover Ray v Real Insurance Pty Ltd (2010) 204 IR 399; [2010] FWA 8544; O’Keefe v William Muir’s Pty Ltd t/as Troy Williams The Good Guys [2011] FWA 5311, and Little v Credit Corp Limited t/as Credit Corp Group [2013] FWC 9642.

[9] Thornthwaite, L., ‘Chilling Times: Social Media Policies, Labour Law and Employment Relations’, Asia Pacific Journal of Human Resources, article first published online: http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1744-7941/earlyview.

[10] Mrs Robyn Vosper v Solibrooke Pty Ltd T/A Angie’s Cake Emporium [2016] FWC 1168.

[11] Ibid at [12].

[12] Ibid at [13].

[13] Ibid at [20].

[14] Ibid at [21].

[15] Daniel Starr v Department of Human Services [2016] FWC 1460 (29 March 2016).

[16] McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16; 140 ALR 625.

[17] Daniel Starr, see note 15 above, at [72].

[18] Ibid at [72].

[19] Ibid at [73].

[20] Ibid at [75].

[21] Ibid at [75].

[22] Judith Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota [2014] FWC 644.

[23] Ibid at [13].

[24] Ibid at [66].

[25] Ibid at [63].

[26] Ibid at [78].

[27] Ibid at [66].

[28] Stutsel v Linfox Australia Pty Ltd (2011) 217 IR 28; [2011] FWA 8444.

[29] Wilkinson-Reed, see note 22 above, at [65].

[30] Ibid at [56].

[31] Ms Kim Fallens v Serco Australia Pty Ltd T/Z Serco Acacia Prison [2015] FWC 8394.

[32] Ibid at [18].

[33] Ibid at [20].


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