Social media and employee termination

Terminating an employee over inappropriate social media use may seem like appropriate action; however, employers need to be mindful of the legal minefields that can occur if the termination is unfair.

Social media blurs the boundaries between public and private, and employers are often worried that an employee’s “private” posts on social media can have a negative impact on their business. It is no surprise that the Fair Work Commission has had to rule the lawfulness of an employer terminating an employee’s employment over a “private” post on social media.

A social media policy should be implemented to provide employees with guidelines on what is (and is not) considered appropriate use of social media. Social media policies are the best way hold employees accountable for their social media conduct and can help protect employers from legal claims such as unfair dismissal.

Here are three things employers need to keep in mind when deciding whether to terminate an employee over a social media post:

• Employers must ensure that their social media policy specifies that employees must make a disclaimer when expressing their own personal opinions, or take steps to ensure that there is no link to their employer at all, when posting or tweeting to personal social media pages.

• Ensure that the conduct complained of is conduct that an employer is entitled to regulate, before deciding on termination. If you are entitled to regulate the conduct, ensure that the social media post is of such gravity as to justify termination.

• If termination of employment is justified, make sure that you have taken all relevant facts into account to ensure that the termination is not harsh, unjust or unreasonable. Consider the personal circumstances, the impact the termination might have on the employee and whether the employee has shown remorse before deciding to terminate an employee. Employers need to be reminded that termination is not the only remedy for misconduct, so consider other alternatives prior to dismissing an employee.