Over recent years, the increase in social media activity across different platforms has facilitated opportunities for employees to comment on a broad range of topics both relating to their employment and on social issues. This has complicated an employer’s ability to maintain a safe and harmonious workplace, which has traditionally been achieved through express contractual terms, lawful and reasonable directions and/or policies and procedures.
The question is to what extent, and on what basis, an employer can regulate social media commentary made outside of work and on third party platforms by an employee who does not identify their employment. That is, can an employer regulate conduct that has no apparent bearing on work?
Some cases are clear-cut, for instance where an employee uses social media to threaten or denigrate other employees. Others are more difficult, such as when an employee uses social media platforms to expose news or make statements that are contrary to the interests and values of the employer.
For NSW public sector employees, the answer will be based on the employment contract, the legislation regulating the employment, together with workforce determinations, codes of conduct and industrial instruments. All of this must then be balanced against the protections afforded to all employees against victimisation and bullying, and the requirement to provide a safe workplace that is free from psychosocial hazards.
There is no personal...
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