The issue of where to draw boundary lines for free speech both inside and outside the workplace is again in the headlines. Marcus Priest maps out where the legal thinking is headed for the public sector.

Where does work finish and your private life start? This is becoming an increasingly difficult question to answer as the internet and social media completely remake the Australian workplace.

Traditionally, the boundaries between work and private life have been clear. But what was just once a comment after work between a few mates over a beer, or over the family dining table, can be broadcast to everyone else in the world over Twitter or Facebook.

It is a change that companies and courts are increasingly grappling with, given the associated corporate reputational damage that can result from workers publicly criticising their employers and the associated comments from their friends. Courts and tribunals are increasingly prepared to find there is no demarcation between private and public worlds.

And it is not just comments made by an employee but also comments posted in response to those comments on their Facebook page.

The issue has again been raised with the release of new rules for Commonwealth public servants using social media, whether in a personal or professional capacity. Public servants are also expected to report colleagues who breach the new guidelines.

Predictably, especially in the context of a political debate over amendments to racial vilification provisions of the Racial Discrimination Act 1975, there has been an outcry over the muzzling of freedom of speech.

However, it does raise an important issue: to what extent can employers dictate to their workers what they can do in their personal lives on social media?

As an active user of social media, I have always taken the approach that I will not tweet what I am not prepared to see reported in a newspaper; whether people realise it or not, a tweet is as much a publication as a newspaper.

The possible consequences of not following that rule were recently illustrated in a case where a Sydney teenager was found to have defamed a former teacher on Twitter and ordered to pay $105,000 in damages. Judge Elkaim said when defamatory publications were made on social media it was common knowledge that they spread.

”Their evil lies in the grapevine effect that stems from the use of this type of communication”.

However, defamation laws are just one example of the ways in which Australian laws qualify an individual’s so-called “freedom of speech” (in reality, there is no such legally recognised right in Australia).

Another may be where an existing contractual relationship exists between parties, particularly an employment one.

In employment contracts, there is an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause. It is a well-established fiduciary relationship.

According to Justices McTiernan and Dickson, in the High Court in Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66, this duty is breached when the conduct of an employee involves “incompatibility, conflict, or impediment, [with the duty] or be destructive of confidence”.

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal… An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.”

This duty of fidelity and to “well and faithfully serve” the firm has traditionally arisen in the context of cases involving the unauthorised use of confidential information or working for competitors. But now, when employees have imprudently expressed comments critical of their employer outside of work, it is being ventilated. And courts and tribunals are increasingly willing to uphold the termination of an employee on the basis of a breach of the duty of loyalty.

In one case before the Federal Court, former Commonwealth public servant Michaela Banerji is fighting her sacking for posting comments on Twitter, under a pseudonym, critical of the previous government’s policies. Banerji unsuccessfully argued her employment conditions – including that she behaved “honestly and with integrity” – were subject to the implied constitutional freedom of political communication.

Federal Circuit Court Judge Warwick Neville found such an unfettered right does not exist and is instead a burden on legislative power. Even if such a right did exist, it did not provide a licence to breach an employment contract, which included a ban on outside work.

Similarly, the Fairwork Australia Commission noted in the case of hair-dresser Sally-Anne Fitzgerald that it was “well accepted that behaviour outside working hours may have an impact on employment.”

FWA found for Ms Fitzgerald, highlighting that “posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.”

“Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common.”

“A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see… It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.”

However, Linfox last year unsuccessfully argued postings by an employee on Facebook breached the duty of loyalty in defending an unfair dismissal claim. Linfox employee Glenn Stutsel was sacked for allegedly posting racially derogatory remarks about a manager on his Facebook page. Offensive comments about a female manager were also posted on his page by a colleague. He claimed he thought his Facebook page was private, and Fair Work Commissioner Michael Roberts found in his favour.

“Comments he posted about terrorism and the death of a terrorist, were an expression of his private views,” he said.

“I consider his comments to be within his right to free speech in such matters even though many, including myself, would find much of the Facebook discourse which is in evidence to be distasteful.”

He further highlighted the company had no social media policy, which he said in the current electronic age was “not sufficient”.

Linfox unsuccessfully appealed the decision to the Full Court of the Federal Court. While the company argued Stutsel’s comments eroded the relationship of trust at the heart of the employment relationship, the full bench held no error has been exposed in the reasons for the decision of Fair Work Australia, let alone a jurisdictional error.

However, the Stutsel decision may be something of an anomaly, especially if an employer has implemented workplace rules and codes of conduct regarding use of social media, both at work and in private time. Late last year, Fairwork Australia Deputy President Sams upheld the termination of an employee of Credit Corp Group Limited.

The employee had posted comments critical of another organisation on its Facebook page and then posted sexually inappropriate comments on his own Facebook page. From his comments on their Facebook page, the other organisation traced the employee back to his and tipped his employer off about his offensive comments. While the employee had done so on a day off work and claimed he thought his Facebook page was private, DP Sams found his conduct amounted to a “repudiation” of his contract of employment with Credit Corp and referred to the comments of McTiernan and Dixon JJ. The fact he had made the comments in his own time was of “no consequence” and it was likely he could have been validly dismissed even if Credit Corp had not had a workplace code of conduct.

“It was inevitable with the seismic shift to the phenomenon of social media as a means of widespread instantaneous communication, that it would lead to new issues in the workplace. These include the extent of the use of social media while at work, the content of such communications and whether they be work or non-work related. Employers have had to respond to the new phenomenon with appropriate policies and codes of conduct – just as they had to respond to employees using work provided computers to receive, store or distribute inappropriate or non-work-related material.”

“I hasten to add, the applicant is perfectly entitled to hold views about any organisation and to express such views in the public domain; but he is not entitled to do so in a manner which injures his employer’s business relationship with that organisation.”

The importance of employers implementing a workplace social media policy was highlighted in another recent case involving by Linfox. This time it had learnt its lesson from the previous proceedings and had in place a social media policy. Linfox took action against one of its employees, for – among other things – refusing to sign the policy. Commissioner Gregory was unswayed by the argument the policy impinged on the employee’s private life.

“In an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business.”

“I accept that there are many situations in which an employer has no right to seek to restrict or regulate an employee’s activities away from work. However, in the context of the use of social media, and a policy intended to protect the reputation and security of a business, it is difficult to see how such a policy could operate in this constrained way. Is it suggested that an employer can have a policy in place that seeks to prevent employees from damaging the business’s reputation or stopping them from releasing confidential information while at work, but leaving them free to pursue these activities outside of working hours?”

Marcus Priest is a lawyer for legal firm Spark Helmore (www.sparke.com.au) who advises government departments and agencies on major projects, corporate governance and administrative law. He was previously the Legal Editor of The Australian Financial Review and has worked across the legal sector, media organisations and as a federal policy advisor.