Social media sites such as Facebook, Twitter and Instagram have given people an unprecedented platform to share their views. This platform to the wider public has resulted in many positive experiences. For example, the ability to communicate globally, meet people with common interests or raise important social justice issues. On the other hand, there are also major drawbacks to having such an audience. Namely, the ability to spread propaganda, defame others or express controversial views. This article will explore whether the latter is enough to justify firing an employee.
Unlawful Termination
Section 772 of the Fair Work Act (Cth) lists a number of grounds that an employer must not terminate an employee for. This includes firing on the basis of:
- Race
- Colour
- Gender
- Sexual preference
- Age
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Pregnancy
- Religion
- Political opinion
- National or social origin
Employers must be very cautious that they are not firing employees for one of the reasons listed above. Controversial views may in fact be traceable to one of the above reasons. The employer will be liable for unlawful termination if one of the above reasons forms the basis of the firing. More on unlawful termination can be found here.
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Get startedUnfair Dismissal
In the absence of the above factors, employers must ensure they do not unfairly dismiss an employee for expressing their views. The question arises whether views that damage the business reputation can result in dismissal. Cases before the Fair Work Commission (FWC) have hinged on the existence of a social media policy for the business. Repeated breaches of the policy, would likely allow the employer to fire the employee. This is assuming the employee is aware of such a policy.
The FWC case Linfox Australia Pty Ltd v Glen Stutsel [2012] found that the firing of an employee was invalid. This was because they did not have a current social media policy in place at the time. This case serves as an important reminder for business owners on setting clear social media rules for employees. The case involved an employee making hurtful remarks about their managers on Facebook. However, the claim of unfair dismissal by the employee was successful.
Therefore, an employer should be wary of a claim for unfair dismissal if firing an employee for controversial views. A claim for unfair dismissal may arise if:
- Firstly, the dismissal was harsh, unjust or unreasonable.
- Secondly, the firing was not consistent with the Small Business Dismissal Code.
- Finally, the dismissal was not a case of genuine redundancy.
More on the requirements to prove unfair dismissal can be found here. Where hurtful views have been shared, an employer should give the employee a chance to explain his or her actions. The FWC will assess each case in context. While damaging the businesses reputation is a ground for termination, the employer must take steps to ensure the firing is not harsh, unjust or unreasonable.
Conclusion
Ultimately, having a clear social media policy in place at your business can prevent controversial views from surfacing and damaging your business. Bringing this policy into the employment contract would allow an employer to fire an employee for such views. Whether an employer is able to fire an employee for expressing controversial views comes down to a case by case basis. Creating a work culture aware of the impacts of social media may prevent harmful views from being shared in the first place. There is however, a grey area between employee freedom and the business reputation of the employer.
