If an employee is dismissed for what they said or did after hours and challenges the dismissal under the Fair Work Act 2009 (Cth) unfair dismissal laws, the Fair Work Commission (FWC) will decide whether the alleged misconduct provides a valid reason for dismissal.

A valid reason for dismissal is a reason that is sound, defensible or well founded, not capricious, fanciful, spiteful or prejudiced.

When will out-of-hours conduct be a valid reason for dismissal?

In Rose v Telstra (1998), it was determined that out-of-hours conduct could only be a valid reason for dismissal if one or more of the following applied:

• the conduct is such that, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee;
• the conduct damaged the employer’s interests; or
• the conduct is incompatible with the employee’s duty as an employee.

Each of these elements would provide a requisite connection between the employee’s private conduct and their employment, principally through the impact of the conduct on:

• the employer’s interests;
• the employee’s duties to the employer; or
• the trust and confidence that underpins the employment relationship.

The FWC applies this approach in cases where employees challenge their dismissal for ‘private’ social media comment.

Applying the approach to social media comments

In the recent case of Corry v ACTU (2022), the FWC upheld the dismissal of an employee for making offensive and discriminatory posts on his personal Facebook account and the employer’s internal messaging service. The posts supported an anti-vaccination mandate campaign and violence against the police, and were discriminatory against various groups including the LGBTQI+ community.

In considering whether the employee’s out-of-hours posts on his personal Facebook account were a valid reason for dismissal, the FWC ruled the posts were likely to cause serious damage to the relationship between the employer and the employee, and to the employer’s interests. Further, the conduct was incompatible with the employee’s duties to the employer. The conduct breached the employer’s policies and constituted serious misconduct, which justified the employee’s dismissal.

In Waters v Mt Arthur Coal (2018), the FWC found that an employer fairly dismissed an employee for a Facebook post made outside work hours on a personal account, and not with an employer device. A key factor was that the Facebook post related directly to work matters in breach of an existing workplace policy prohibiting that conduct. The FWC was then satisfied there was a relevant connection between the out-of-hours conduct and the employment relationship.

In Colwell v SICT (2018), the FWC determined that an explicit video sent out-of-hours via Facebook Messenger by a stevedore to a group of colleagues, including female workers, was a valid reason for dismissing him. The employee argued the conduct did not have sufficient connection to his employment, given that it occurred outside work hours, did not involve any work-related facilities, and the individuals involved were the applicant and other employees who had self-selected to be Facebook friends.

However, the FWC ruled there was a requisite nexus between the conduct and the employment, which provided a valid reason for the dismissal. Further, the employer had taken steps to encourage women to participate in employment in the stevedoring industry and its policies sought to prevent all forms of harassment in the workplace.

Find out more about your rights in relation to social media

Visit the Employment Law Practical Handbook chapter, Social Media, to learn more about the legal risks of social media use by employees and members of the public, and how to minimise the risks to your business.

And keep your eyes peeled for an update to this chapter coming in May, in which we’ll add the most recent cases and more tips to help you navigate this tricky area of employment law.