March 7, 2019

Social media use outside of work: can an employee be dismissed?

Who doesn't use social media? As its importance grows in our everyday lives, so too does it impact on our working lives. Many employers expect their employees to act appropriately outside of working hours and social media is increasingly an area of concern for employee conduct. In a recent case we explore how the inappropriate use of social media can have dramatic consequences for our employment.

In Fussell v Transport for NSW [2019] FWC 1182, the Fair Work Commission (FWC) considered whether an employer could validly dismiss an employee for sending another employee offensive images outside of work hours.

The facts

Mr Rodney Fussell was employed by Sydney Trains and commenced as a Train Guard in September 2010.

All employees employed by Sydney Trains are required to comply with the Code of Conduct, Transport Prevention and Management of Bullying and Harassment Policy (Harassment Policy) and the Use of Social Media Policy (collectively, Sydney Train's Policies). The Sydney Train's Policies provide that staff are personally responsible for the content they publish in a personal capacity on any social media platform, that professional standards and ethical principles apply to all online activities undertaken by staff, that there is a zero tolerance for harassment, and harassment involves unwelcome behaviour that a reasonable person would consider intimidates, offends and/or humiliates a person. Examples given of harassment were circulating sexual material, physically or electronically.

Ms Kendall Abbott was also a Train Guard. She had known Mr Fussell for around eight years as he started work at the same time as her. They had been Facebook friends for a lengthy period.

On the evening of 25 February 2018, while Ms Abbott was watching television at home with her husband and two children, Mr Fussell started sending Ms Abbott messages through Snapchat. Photographs on snap chat can be viewed by a user specified length of time (1 to 10 seconds determined by the sender) before they become inaccessible. During the exchange he said he had tried Viagra and was home alone and forwarded a photograph of his erect penis to her. Immediately after receiving the offending image Ms Abbott received a message from Mr Fussell saying 'Shit don't look. I'm so sorry". Ms Abbott replied "don't f++king do that again". Ms Abbott took a screenshot of the image. That image was brought to the attention of Sydney Trains' Workplace Conduct and Investigation Unit (Investigation Unit) who commenced an investigation.

On 15 August 2018, Mr Fussell's employment with Sydney Trains was terminated. While it was acknowledged that the offending image was sent outside work hours and did not involve a work device, Sydney Trains considered that Mr Fussell's conduct was in breach of relevant workplace policies and was incompatible with his duty as an employee of Sydney Trains.

Mr Fussell commenced proceedings in the FWC claiming he was unfairly dismissed and asked to be reinstated.

The FWC dismissed his application and found that Sydney Trains had a valid reason to dismiss him.

Social Media used outside of work hours can still be attributed to work

While the offending conduct occurred outside work hours, "out of hours" misconduct can constitute a valid reason for dismissal if it has a relevant connection to the employment relationship. In the case, Rose v Telstra Corporation Print Q9292 [1998] AIRC 1592 Vice President Ross of the Australian Industrial Relations Commission considered the kind of out of hours conduct which would have that relevant connection. In summary the conduct:

  1. must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or

  2. damages the employer's interests; or

  3. is incompatible with the employee's duty as an employee

Turning back to the Fussell case, the FWC determined that there was a work connection as the misconduct in question concerned the use of social media contrary to Sydney Train's Policies; which expressly applied to out of work hours conduct in respect of interactions between staff, including interactions on private and social media platforms. If the Sydney Train's Policies did not extend to behaviour outside work hours, then it is questionable whether Sydney Trains would have been able to successfully defend the claim.

Key points to take away

Employees should be cognisant that inappropriate use of social media apps, even outside work hours in respect of matters which, on the face of it, have no connection with their work, can lead to their dismissal.

Employees should review their employer's social media policies to understand what rights their employers have in respect to their conduct out of work hours.

Equally employers should review their social media policies to ensure that they are sufficiently wide enough to protect their legitimate interests but not too restrictive to deter people from working for them. Further employers should ensure that their social media policies are easily accessible and that they have systems in place to ensure that employees are aware of their policies and any changes to them. 

The facts of the Fussell case provide a relatively simplistic example of inappropriate out of hours conduct on social media leading to dismissal. However, it is easy to see how situations could arise, where the facts are not so stark and where an employer's social media policy may violate an employee's rights so as to sever the connection between the employee's out of hours conduct and the employment relationship.