The Workplace and the Law in Age of Social Media

Many of us love social media. As of August this year, in Australia Facebook had 17 million monthly active users (with 12 million logging in every day), Instagram had five million monthly active users, LinkedIn had 4.2 million and Twitter three million.

Many of us also place details about our employment on social media sites. This may seem obvious on LinkedIn, yet less so on other channels where we post about the various aspects of our social lives, yet as the cases listed below illustrate, this has not been a barrier to employment termination.

The Workplace and the Law in Age of Social Media

As the boundaries between corporate life and private life become porous, what does this mean for our obligations as employees?

Employees have a number of duties to their workplace, many of which are implied in law, such as the duty to obey lawful and reasonable directions. At face value this makes sense, but what does reasonable mean? And what about an employees’ implied right to freedom of expression, particularly via social media?

Interestingly, the Fair Work Commission — Australia’s national workplace relations tribunal — has been adjudicating on several of these matters. The commission’s anti-bullying jurisdiction, which commenced on January 1, 2014, allows a person who believes they have been bullied at work to apply for an order to stop the behaviour.

The use of social media to engage in bullying behaviour has created particular challenges for the commission. It has found conceptually there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying. But how does the definition of “bullied at work” apply to such behaviour? Where the bullying consists of a series of Facebook posts, there is no requirement for the person who made the posts (the alleged bully) to be at work at the time the posts were made; and what about the worker to whom they are directed? I

n making determinations the commission studies the practical application of the definition of “bullied at work” relative to s. 789FD of the Fair Work Act 2009 with respect to social media. In one case, an application to stop bullying occurred where Facebook posts were made by employees containing unreasonable and insulting allegations against other employees.

This was originally published by The Australian.

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