Imagine that you’re faced with these employer nightmares:

  • An employee sends a ‘d%#k pic’ on Snapchat to his co-worker, out of hours and from his personal phone. The co-worker is at home on maternity leave with her newborn baby. (1)
  • Another employee posts sexually explicit memes on Facebook – one containing a sexual connotation referring to a female colleague. (2)

What do you do?

Step one: check your social media policy… hopefully, you have one.

The cases

Astonishingly, these were the real-life facts in unfair dismissal cases decided by the Fair Work Commission.

In defending the claims, the employers had to explain the reasons for dismissals and why they were justified.

Fortunately, the employers had social media policies. Moreover, they could demonstrate that the employees were aware of them. In reliance on their policies, the employers were able to successfully defend the unfair dismissal claims.

Why a policy is important?

To defend an unfair dismissal claim

Courts and tribunals have recognised that:

  • social media (and other internet posts) can have a sufficient nexus to the workplace to permit an employer taking disciplinary action; and
  • an employer may regulate some online conduct by employees.

However, without a social media policy, you may fall over at the first hurdle. Depending on the content of an employee’s post, you may not be able to successfully defend an unfair dismissal claim without a social media policy.

To deal with psychosocial OHS risks

It’s also important to have appropriate policies regulating staff behaviour – including a workplace behaviour policy and a social media policy – to meet your workplace health and safety obligations. Every business has obligations to eliminate or mitigate, so far as is reasonably practicable, risks to health and safety at its worksites, including psychological health and safety.

One of the greatest risks to psychological health and safety is inappropriate workplace behaviour. Even before the COVID-19 pandemic, social media blurred the lines between work and personal life. Since then, a large contingent of the workforce has continued working from home and/or using smart phones. This has made inappropriate offsite and digital conduct frequently over email, text message or social media – even more common.

Before the end of the year, the Victorian Government will release new regulations dealing with psychosocial workplace risks. We will send an update when we know more about the regulations. However, in anticipation of their imminent arrival, it’s a good time to audit the workplace conduct policies that you have in place now.

To protect your brand

Another important reason to have a social media policy in place is to protect your business’s reputation. Many of our clients have grappled with reputational damage flowing from social media posts.

A well-drafted social media policy can help regulate employee-online conduct and guard against this. When you have clear rules, employees are more likely to think twice about poor online choices (including posting, re-posting, ‘liking’ etc) and consider the broader context, i.e., their employment and the impact on your brand.

What should a social media policy cover?

Typically, a social media policy will set out:

  • the scope of its application (for example, what social media includes, to whom it applies and in what contexts – including out of hours conduct);
  • acceptable vs. unacceptable use of social media; and
  • the consequences of breaching the policy, including that personal social media use can still affect employment and result in disciplinary action.

Sometimes our clients also include guidelines or practical tips to assist employees to avoid regrettable social media activity.

Having a policy in place is just the first step – you also need to make sure that your employees are aware of it, receive training and you keep records of when they were trained (and what they were trained about).

How Justitia can help

We can provide you with:

  • clear policies;
  • help with implementation;
  • training; and
  • advice about policy breaches.

For more information or for help with any of the above, please get in touch with our friendly team at info@justitia.com.au.

This is general information only, is current as at 24 March 2025 and may not be applicable to your organisation or situation. It is not a substitute for legal advice and it is important that you obtain specific advice.

Footnotes:
(1) Fussell v Sydney Trains [2019] FWC 1182
(2) Thompson v 360 Finance Pty Ltd [2021] FWC 2570