The interplay between social media and employment is often fraught with complexity and conflict.
On the one hand, is an employee who is adamant that they have a right to a personal life which includes being able to express themselves on social media. And on the other hand, is an employer determined to protect their brand and business.
What are my obligations in relation to social media?
Many employers have a social media policy, or indeed a bullying policy which may be relevant to social media use. Any breach of an employer’s policy is likely to result in disciplinary action.
Public service employees need to be more careful; public servants are often bound by a Code of Conduct which seeks to regulate out of hours conduct, including to be apolitical.
In addition to that, it’s likely that most employes have either an explicit or implied duty of good faith or fidelity which generally involves a duty to act honestly, maintain confidentiality, to avoid conflicts of interests, or to otherwise not engage in other acts that would destroy the necessary confidence of the employer.
Can I be dismissed for a social media post?
Dismissal cases before the Fair Work Commission show that the Commission attempts to balance a person’s right to a personal life with their obligations to their employer.
In some circumstances it is possible to be dismissed because of a social media post.
In relation to out of hours conduct, the FWC has confirmed that an employee can be terminated in the following circumstances:
- the conduct must be such that, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee; or
- the conduct damages the employer’s interests; or
- the conduct is incompatible with the employee’s duty as an employee.
The FWC has further indicated that the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.
FWC cases in which the employee was dismissed for a social media post
In O’Keefe v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys [2011] FWA 5311, the Applicant was found to be fairly dismissed for writing a post on Facebook that was found to be threatening to staff of the employer.
In Little v Credit Corp Group Limited [2013] FWC 9642, the Applicant was found not to be unfairly dismissed for making critical comments about a company that his employer was associated with.
In Conrad John Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288 the Applicant was found to have not been unfairly dismissed for making various posts which were contrary to the public positions of the employer.
In Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186, the employee, who worked at an airport, was found to be unfairly dismissed after posting: ‘We all support ISIS,’ though he later claimed that the post was sarcastic.
In Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358, an employee posted the following: “Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!” The Applicant was found to be unfairly dismissed, as the post was not responded to immediately, and the post was found to be unlikely to be detrimental to the Respondent’s business.
Conclusion
It is not always possible to predict with certainty which posts will result in a finding of unfair dismissal. However, posts that damage an employer’s business or standing are more likely to be found to be a valid reason for dismissal, in contrast with silly or jocular posts in which an employee is merely blowing off some steam or complaining at large.
Tips for social media management
In relation to personal social media use, it is prudent to not post anything negative or critical about work at all. If you do, it is a good idea to review your privacy settings, be mindful of who might see the post, and to remove anything from your profile that identifies your place of work.
This article is information only and is not legal advice. It relates primarily to employees under the Fair Work Act 2009 (Cth). Please contact Henry Bournes for personalised advice. Henry Bournes 2026 © Liability limited by a scheme approved under Professional Standards Legislation.