Home - Employee out-of-work social media use: When IS it your business?

UpdatesJan 16, 2019

Employee out-of-work social media use: When IS it your business?

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.

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:

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:

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.

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