While there is an increasing number of bullying and sexual harassment claims emanating from social media misuse outside working hours, conversely an employee can say it is a breach of their privacy if an employer views their social media activity.

What if an employee’s posts on social media amount to misconduct?

Does the employer have a right to use this information to carry out a misconduct investigation?

A Supreme Court case, Jurecek v Director, Transport Safety Victoria (2016), raised the question of whether an employee’s abusive remarks on social media were subject to privacy laws.

Two questions to consider are whether employers can take action on social media posts made outside working hours and whether consent is required to look at employees’ social media pages.

Can an employer act upon social media posts made outside working hours?

Yes, an employer can take disciplinary action upon social media posts made outside working hours if:

• the post identifies (directly or indirectly) that the person is an employee of the organisation;
• the post is visible during working hours;
• there are organisational policies on social media use that the employee has been trained in; and
• the post breaches the law (for example, it discriminates against or bullies someone) or breaches the values, code of conduct, or policies of the organisation.

Can an employer look at Facebook or other social media forums without the employee’s consent?

Again, yes, an employer can look at it without consent, provided that what is viewed is shown to the employee and you give them the opportunity to respond to the allegation.

In the Jurecek case, the affected employee argued that the collection of personal information without first seeking to obtain it from her directly, and using it without making her aware of it, breached privacy legislation.

The employer in this case had viewed and obtained information from the employee’s Facebook page, which had been posted under a pseudonym.

The Supreme Court of Victoria held that information published on well-known social media sites, irrespective of the privacy setting is not necessarily private information for the purpose of any human right or privacy legislation.

However, even if the organisation’s action did breach that legislation, it was necessary to protect the functions and activities of  the organisation.

What does the outcome of this case mean for employers?

When collecting employee social media information and screenshots:

• there must be a legitimate purpose for the investigation – it cannot be for some improper purpose;
• where possible, you should seek to obtain the information directly  from the person first (this has risk as a post can be taken down);
• any decision you make must disclose the information you rely upon and you should give a person a chance to respond to the allegations  against them before any disciplinary decision is made;
• your policies must make it plain what the rules around responsible social media use are, and your powers of investigation and discipline; and
• employees must be trained in the policy and be aware of what happens if they breach it.

Although this case does provide some guidance, it is not the final word on privacy and social media. Lawyers continue to wrestle with issues surrounding employee social media use.

To avoid difficulties in managing social media misuse, your organisation needs to define what constitutes good behaviour, explain that breaches can lead to termination of employment, and set out when and under what circumstances it will pursue matters.