Can Your Boss Legally Fire You for Something You Post on Social Media?
Social media is part of everyday life. We share opinions, post photos and comment on current events, sometimes without considering how our online activity could affect our employment.
But can your employer legally sack you for something you post on Facebook, Instagram, TikTok or another social media platform, even outside working hours?
The short answer is yes, in some circumstances. However, not every social media post justifies dismissal.
Under Australian employment law, an employee's online activity may have workplace consequences where there is a sufficient connection between the conduct and their employment.
When can a social media post get you fired?
The Fair Work Act 2009 (Cth) provides protections against unfair dismissal for eligible employees. However, a social media post may provide a valid reason for dismissal depending on its content and the circumstances.
Examples of conduct that may raise workplace concerns include posts that:
- Threaten, harass or bully colleagues.
- Disclose confidential workplace or client information.
- Seriously damage an employer's reputation.
- Breach an applicable workplace social media policy or professional obligation.
An employer's personal disagreement with an employee's opinion does not automatically justify dismissal. The nature of the post, the employee's role and the connection to the workplace all matter.
Does it matter if your account is private?
Not necessarily. Posts made outside working hours or on private accounts can still have employment consequences. Content can be screenshotted, shared or brought to an employer's attention.
In Ventia Australia Pty Ltd v Pelly [2023] FWCFB 201, the Fair Work Commission considered offensive material shared in private Facebook groups. The case highlights the importance of examining the circumstances surrounding the posts and whether the conduct was sufficiently connected to the employee's employment.
A private account does not guarantee protection, but it does not automatically give an employer grounds for dismissal either.
What if you are dismissed over a social media post?
Under sections 385 and 387 of the Fair Work Act 2009 (Cth), the Fair Work Commission considers whether a dismissal was harsh, unjust or unreasonable.
Relevant factors include whether there was a valid reason for dismissal relating to the employee's conduct, whether the employee was informed of the reason and whether they were given an opportunity to respond.
The Commission may also consider the employer's procedures, applicable workplace policies and the circumstances of the conduct. A dismissal may be unfair even where the employer had concerns about the employee's behaviour.
Can you challenge the dismissal?
Eligible employees may apply to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth).
Strict time limits apply. An application generally must be lodged within 21 days after the dismissal took effect, unless the Commission grants an extension. Eligibility requirements also apply, so not every employee will qualify to make an unfair dismissal application.
If you have been dismissed over something you posted online, consider obtaining legal advice promptly and keeping copies of relevant posts, workplace policies and communications with your employer.
The Lawgix takeaway
Your social media account may be personal, but your online conduct can sometimes affect your employment. Whether a post justifies dismissal depends on its content, its connection to the workplace and the circumstances surrounding the employer's decision.
An employer cannot automatically assume that every controversial post is grounds for dismissal. Understanding your rights under Australian employment law can help you determine what steps may be available if your online activity leads to disciplinary action.
