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Abstract
For over a decade, industrial tribunals have been adjudicating unfair dismissal cases concerning employees’ use of social media outside work. Early analyses suggested that tribunals tended to consider social media a public domain, in which communication constituted a broadcasting to the world at large, an interpretation, scholars argued, that would facilitate a shift in the boundaries of the employment relationship towards greater employer control of employees’ private lives. Has this continued to be the case as social media has become an ever more entrenched social phenomenon? Through an examination of decisions by the Australian Fair Work Commission since the dawn of Facebook in 2004, with a particular focus on more recent judgments, this article argues that the reasoning of industrial tribunals may be changing towards recognition of a reasonable expectation of privacy for employees when using social media in their private lives. This has implications for the shifting boundary between employees’ public and private lives, suggesting a need for continuing and comparative analysis of industrial tribunal decisions involving employee social media use.
The rapid proliferation of social media (SM) and other digital communication technologies through society has left law and policymaking trailing. Research has suggested that SM is blurring the legal distinction between employees’ public and private lives, increasing employer control over personal lives in ways reminiscent of traditional master–servant relationships (Lam, 2016; Spinelli, 2010; Thornthwaite, 2013; Wragg, 2015). Early analysis of industrial tribunal decisions in cases concerning an employee’s dismissal for conduct on SM such as Facebook and Twitter in their personal time suggested that decisions were shifting the boundary of employment relationships towards greater employer regulation of employees’ private lives (Thornthwaite, 2013). In early decisions, tribunals tended to consider SM a public domain in which participants broadcast to the world at large, relinquishing any expectation of privacy (Brice et al., 2012; Thornthwaite, 2013; Van Gramberg et al., 2014). Yet as SM has become an increasingly entrenched social phenomenon, there has been no research on whether this interpretation has continued.
Addressing this gap, this article examines recent developments in Australia, where the national industrial tribunal, the Fair Work Commission (FWC), has begun developing a reasonable expectation of privacy for employees when using SM off duty. Through examining FWC decisions in unfair dismissal cases, particularly recent judgments, this analysis draws attention to not only the shifting legal boundary between employees’ public and private lives, but also emerging limits to the extent to which the medium of SM is, in reality, increasing employer control over employees’ personal lives. The article proceeds by discussing the significance of unfair dismissal cases involving SM in a number of countries and the legal frameworks within which these cases are decided. This is followed by a brief outline of the relevant law in Australia, before turning to an analysis of the decisions of the FWC in recent years and a concluding discussion on a shift in judicial reasoning towards a reasonable expectation of privacy.
Social media and unfair dismissals: A lens on employment relationship boundaries
The SM platforms that web 2.0 digital technology have provided since 2004 have myriad implications for industrial relations both in terms of the opportunities they provide to employers, employees and their representative organisations and the risks and dangers they carry. SM has implications for communication and voice at work, for monitoring and surveillance, for representation and activism, and for behaviour and workplace relationships generally, including the risks of bullying, intimidation and discrimination against/by employees (Balnave et al., 2013; Holland et al., 2016; Lam, 2016; Pearson, 2014). As a result of these myriad implications, in many countries employees have been disciplined and/or dismissed for alleged misuses of SM amounting to misconduct both at work and when off duty. Court and tribunal decisions in unfair dismissal cases therefore provide a valuable lens into the extent to which employers can regulate employees’ SM conduct in their personal time.
Fink (2013: 580) argued that without regulatory adaptation, advances in communication technologies can lead inevitably to the attrition of privacy. With SM, where self-disclosed information may be permanent, transferable, shareable and searchable, privacy can be heavily compromised (Boyd, 2014; Taddicken, 2013). In Australia, early judgments of the FWC observed that with SM an employee may never be ‘off duty’.1 In the UK, early Employment Appeal Tribunal (EAT) decisions similarly emphasised the public nature of online posts.2 Reviewing FWC decisions to late 2012, Thornthwaite (2013: 21) concluded that ‘for employees to comply with their implied contractual duties they cannot safely communicate about their working lives in these forums’ (see also Lam, 2016). This reasoning is consistent with Fink’s (2013: 583) argument that ‘employees cannot have it both ways. They cannot throw open the doors to their private lives, and then protest when they do not like who enters’. However, as Semitsu (2011: 293) said of Facebook, currently the predominant SM platform, ‘[it] is not just a website. It is a controlled ecosystem that inspires its inhabitants to share personal information and reveal intimate thoughts’. Sometimes, online communication is clearly inappropriate and harmful to colleagues, an organisation or industry, but sometimes it is something – perhaps posted tactlessly and foolishly – to which viewers simply take offence. However, as Wragg (2015: 2) argues, ‘there is a palpable sense that disciplinary action against employees is often motivated by management’s idiosyncratic, subjective perspectives on the employee’s behaviour and that courts and employment tribunals are over-indulging such responses when determining claims’.
Research indicates that, when determining disciplinary or dismissal disputes concerning employee use of SM in their private lives, industrial tribunals generally have considered it legitimate that employers police the online behaviour of employees when off duty (Lam, 2016; Wragg, 2015). Generally, though, research has focused on the early decisions of tribunals when SM was still in its youth (e.g. see Thornthwaite, 2013; Van Gramberg et al., 2014). However, analysis of more recent tribunal decisions in Australia suggests that, as SM has become increasingly entrenched, tribunal reasoning may be changing. More recently, FWC judgments have recognised that, in certain circumstances, employees may have a reasonable expectation of privacy. In various decisions, the FWC has established that employees are entitled to post online criticisms of management and working arrangements outside work, and that online privacy settings do establish a privacy boundary for employees. The tribunal has also expressed some concerns about employers policing employee behaviour beyond work through SM policies. This suggests that it may be timely to reconsider not only tribunal approaches to cases involving SM, but also the implications of this for the widely proclaimed ‘blurring’ of public and private lives of employees (Van Gramberg et al., 2014).
Notwithstanding differences in privacy and employment protection law between Australia and other jurisdictional regimes, analysis of the Australian experience is relevant to many other countries because disputes over dismissals based on employees’ off-duty conduct on SM sites have emerged in many Western countries in recent decades, leading to a growing body of case law on the fairness and/or lawfulness of dismissing employees for online conduct in their personal time. In the UK, for instance, employment tribunals have determined a number of SM dismissal applications under the Employment Rights Act 1996 (UK), which provides the right not to be unfairly dismissed (s 94). These decisions have provided a foundation for an emerging body of case law on dismissals where the alleged misconduct has involved the SM comments of employees in their personal lives. In the process, on occasion, employment tribunals have also had to consider the application of Article 8 of the European Convention of Human Rights, which guarantees the right to a reasonable expectation of privacy in one’s private life. Since the Human Rights Act 1998 (UK) (HRA) incorporated the Convention into domestic law, employment tribunals, as public authorities, have been obliged to read and give effect to industrial law in a way compatible with both rights under the HRA and rights laid down in the European Convention, as interpreted by the European Court of Human Rights.
Cases involving employees’ off-duty use of SM have also featured in Canadian courts. Constraints on the employment-at-will doctrine in Canada are more limited than in the UK, but employees may sue employers who they claim lacked just cause to dismiss them, and for unionised employees, grievance procedures provide an avenue for pursuit of compensation or reinstatement. In the United States, the employment-at-will doctrine continues to allow employers to terminate an employee for any reason so long as the termination does not violate contracts or federal or state legislation. This provides little protection to employees for terminations based on off-duty conduct on SM sites. However, federal and state legislation has created exceptions to this rule and most state courts have created judicial exceptions, such as public policy and implied contract exceptions, which provide limited but significant protections against employer efforts to regulate employees’ off-duty activities (Gely and Bierman, 2007). In addition, the protected concerted action provisions in the National Labor Relations Act (NLRA) have proved a source of protection for employees dismissed because of comments made about workplace and/or industrial issues online when off duty, where those comments fall within the Section 7 protected concerted action provisions (Brice et al., 2012; National Labor Relations Board (NLRB), 2011, 2012).
In many countries, in addition to general employee misconduct policies, increasingly specific employer policies regulating employees’ conduct on SM also provide grounds for deemed inappropriate uses of SM by employees in their personal lives. Accordingly, in actions for unfair dismissal, tribunals often also refer to these organisational SM policies when determining the question of fairness. It is only in rare cases that tribunals have questioned the extent to which such policies intrude into employees’ private lives. A notable exception, however, has been the US where the NLRB has published guidelines on when an employers’ SM policy will fail to protect the organisation in cases concerning off-duty employee uses of SM because the employees’ conduct may come within the protected concerted action provisions. For instance, the Board has ruled that an employer violates the NLRA not only where its SM policy explicitly restricts protected activities, but also when it is ‘overbroad’ and would ‘reasonably tend to chill employees in the exercise of their Section 7 rights' (NLRB, 2011, 2012).
Across the Western world, the key distinction that underpins legal conceptions of privacy is that between the notion that privacy fundamentally is linked to human dignity, and the conceptualisation of privacy as control over information (Levin and Abril, 2009). The former perspective is grounded in the European conception of human dignity, with privacy a fundamental human right necessary for self-development and fulfilment. This is encapsulated in the European Convention on Human Rights and associated jurisprudence of the European Court of Human Rights. In Von Hannover v Germany, the ECHR established the benchmark from which application of Article 8 must proceed. The Court recognised the ‘fundamental importance of protecting private life from the point of view of the development of every human being's personality' and noted that the protection ‘extends beyond the private family circle and also includes a social dimension' (Von Hannover v Germany, 2004-VI Eur.Ct.H.R. 41 at 69). In Copland v United Kingdom the ECHR determined that this right extends to individuals’ use of telephones, emails and the internet (Copland v United Kingdom, 2007, App. No. 62617/00, 45 Eur.H.R.Report 37 at 866 at [42]). In a more recent case – Oleksandr Volkov v Ukraine, Application no 21722/11, 9 April 2013 – involving the applicant’s dismissal from the Ukrainian Supreme Court judiciary, the ECHR observed in relation to Article 8 that private life also ‘encompasses the right for an individual to form and develop relationships … of a professional or business nature' [at 165]. The ECHR also held that the dismissal breached Article 8 in impacting on the applicant’s ‘ inner circle' through its tangible consequences for his and his family's material well-being [at 166].
However, it is the informational control notion that predominantly is reflected in Australian privacy law (discussed later). Levin and Abril (2009) argue that SM poses a fundamental challenge to this conceptualisation, because objectively, absolute control of information in SM spaces is impossible. In the US, courts have determined that this arguably gives rise also to a subjective prospect of privacy under certain circumstances. In determining this, courts have considered analogies from traditional forms of privacy protection. They have maintained, for instance, that reliance on individual safeguards such as personal accounts, passwords and security settings ‘should be no less reasonable than reliance upon locks, bolts and burglar alarms' (Newell, 2010–2011: 34). Such decisions have developed from the US Supreme Court judgment in Katz v United States 389 U.S. 347 (1967).
In Katz, the US Supreme Court definitively recognised the concept of a reasonable expectation of privacy. In deciding this case, which involved a telephone conversation in a public telephone booth, the Court adopted a two-step process for determining this ‘expectation’: first, that a person has exhibited an actual expectation of privacy; second, that the expectation is one that society is willing to recognise as ‘reasonable'. Katz held that in taking steps to create a private space such as shutting the booth door, an individual indicates an intention not to broadcast globally, thus demonstrating a reasonable expectation of privacy (Katz at [352], [368–9]). The Court decided that though Katz was visible, and divulged information to another person and potentially to eavesdropping operators, in closing the door, he obtained a reasonable expectation of privacy. The concept of ‘a reasonable expectation of privacy’ found its way into ECHR jurisprudence in the 1997 case of Halford v the United Kingdom (1997-III Eur.Ct.H.R. at [44–45]), which concerned the UK government monitoring an employee’s telephone conversations from her office and home phones. The ECHR held that an individual's reasonable expectation of privacy is linked to the integrity and dignity of the person In deciding claims of privacy invasion, the principle has since also been adopted in other countries, including New Zealand and some Canadian provinces. The Australian Law Reform Commission (ALRC) (2014: 91–92) noted that the reasonable expectation of privacy ‘is a useful and widely adopted test of what is private’. Recently, the ALRC recommended the establishment in Australia of a statutory tort of privacy that would be actionable where a person had a reasonable expectation of privacy in all the circumstances, but the federal government has not acted upon this (ALRC, 2014: 92). The ALRC recommended a non-exhaustive list of considerations to accompany this tort. Listed in Table 1, these include the Katz test of whether the plaintiff has manifested a desire for privacy (Table 1h) along with seven other matters (ALRC, 2014: 96).
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Table 1. ALRC proposed list of considerations for the test of a reasonable expectation of privacy.
However, as this article argues, elements of the reasonable expectation of privacy principle are emerging in FWC decisions involving employees’ off-duty SM behaviour. This article examines FWC decisions in unfair dismissal applications involving SM, focusing on recent decisions, in order to identify the circumstances in which employees may have a reasonable expectation of privacy. As a background, the next section outlines current Australian law pertaining to dismissals involving SM. Following this, recent FWC decisions are examined, and the penultimate section details the implications for employee rights and the frontier of control.
The law on privacy, unfair dismissal and SM in Australia
In terms of an employer’s right to control their employees’ private lives, the two pertinent legal areas in Australia are privacy and employment law. While employment law establishes limits to employer control of employee conduct outside work and the circumstances in which termination based on those activities may be unfair, privacy law directly addresses the circumstances in which individuals can challenge alleged privacy breaches. Essentially, only employment law currently provides a dispute resolution forum concerning the dismissal of employees for online conduct when off duty in Australia.
Under Australian law, protection against unfair dismissal is provided under the Fair Work Act 2009. Section 385 of the Act provides that workers can challenge the fairness of their dismissal in the FWC on several grounds, including that the dismissal was harsh, unjust or unreasonable. Where cases involve the use of SM when an employee is off duty, the question arises of whether the employer legitimately can dismiss the employee for that conduct. In terms of employment law, in common law countries such as Australia, the limits to an employer's control of employee activities off duty rest heavily on judicial interpretations of obligations, or duties, long implied into the employment relationship. While the origins of these duties lay in traditional master–servant law, under which ‘servants' were required to obey their ‘masters’ at all times, including outside work (Deakin and Wilkinson, 2005: 361–362; McCallum, 2000: 17), their application and scope has changed over time through judicial interpretation (Deakin, 2002: 180–182; Freedland, 2003: 88–89). In Australia, the right of employers to regulate employee conduct outside work has traditionally been constrained, courts and tribunals generally recognising the principle that an employee ‘is entitled to a private life’ (Creighton and Stewart, 2010: 409–412; Owens et al., 2012: 213). Nonetheless, while the (former) Australian Industrial Relations Commission observed in GrainCorp Operations Ltd v Markham (2002) 120 IR 253 [at 267] that ‘only in exceptional circumstances will an employer be given an extended right of supervision over the private activities of employees’, elements of the master–servant relationship remain.
Before the contemporary SM explosion, the FWC (and its predecessors) had developed limits to when an employer could regulate employee’s private lives through cases such as Blyth Chemicals v Bushnell (1933) 49 CLR 66 and Rose v Telstra Corporation [1998] AIRC 1592. Following Rose v Telstra, in order to terminate an employee lawfully, an employer had to be able to show a sufficient, requisite connection between an employee’s off-duty conduct and the employment relationship. Also required was ‘an actual repugnance between the individual’s acts and the employment relationship’: it was ‘not enough that ground for uneasiness as to future conduct arises’ (Blyth Chemicals [1933] at [81–82]). Essentially, an employee’s conduct had to be of such gravity or importance that it indicated a rejection or repudiation of the employment contract (Rose v Telstra at [1602]). Thus, while employees had no general right to privacy, they could criticise colleagues, managers and working conditions, when off duty, largely without sanction.
However, employers have been encroaching on this boundary increasingly through the implementation of SM policies that prohibit forms of SM conduct outside work. Under the human resource policy umbrella, SM policies typically are implemented to codify and communicate the rules governing employee SM use in their organisation, permitted and non-permitted forms of behaviour, and the consequences of engaging in prohibited conduct. Typically, SM policies contain wide-ranging restrictions on employee online activity off duty, as well as often requiring employees to whistleblow on colleagues’ activities. Although these policies may be considered necessary in the context of the legal and financial risks that employers potentially face in relation to the online behaviour of employees (Van Gramberg et al., 2014), as Thornthwaite (2016a: 349) argued, through these policies, employers are also increasing their regulation of employees’ personal lives, curtailing the scope of freedom of expression outside work.
While in many countries, as discussed earlier, specific statutory privacy protections are attached to aspects of the employment relationship, in Australia, privacy law gives little protection to employees dismissed for off-duty SM posts. The Privacy Act 1988 (Clth) principally is concerned with security of personal information held by certain organisations. The Act contains 13 privacy principles to govern the collection, use, disclosure and other handling of personal information. Some limits may pertain to regulation of employee SM use under the Privacy Act: for example, employers may only collect personal information that is necessary for their function, use fair and lawful collection methods, and not intrude unreasonably. Under the employee record exemption, an organisation can lawfully use an employee record that is directly linked to a current or former employment relationship. Essentially, however, the Act applies only to the use that government agencies and large corporations make of personal information about individuals (Jarrett, 2010).
State and territory governments have regulated information privacy similarly. Additionally, state workplace surveillance laws prohibit covert surveillance of employees at work. However, employers largely are free to view employees' personal online sites, record comments and pass that information to third parties (Taylor, 2015). Further, the common law has not legally recognised a right to privacy, although in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 the High Court did not rule out development of a privacy tort. As noted earlier, in 2014, the ALRC recommended legislation to establish a statutory tort of privacy, but the federal government has not acted upon this.
According to Thornthwaite (2013), who mapped the 11 factors the FWC generally considered in deciding unfair dismissal applications involving SM, the FWC had not established that employees might have a reasonable expectation of privacy by mid-2012. Since then, however, the FWC has given increased attention to some of the judicial considerations which the ALRC recommended should accompany a statutory privacy tort (Table 1), including the plaintiff’s conduct in establishing privacy, methods used to obtain the information, and the purpose of the intrusion (Thornthwaite, 2016b). Thus, FWC decisions provide an emerging line of reasoning that extends to employees a reasonable expectation of privacy regarding online posts in certain circumstances.
Developing a reasonable expectation of privacy
In early FWC decisions in which SM featured as grounds and/or evidence for challenged dismissals, such as Fitzgerald v Smith t/as Escape Hair Design [2010] FWA 7358 and The Good Guys [2011], the FWC tended to consider that online posts were public regardless of the circumstances. However, more recently, the FWC has signalled a shift in reasoning. In examining these decisions, the discussion is organised using relevant considerations which the ALRC associated with the principle of a reasonable expectation of privacy (Table 1).
Considering where the intrusion occurred
In 2010, the FWC established in Escape Hair Design [2010] that employees cannot assume off-duty SM activities are private. Responding to the applicant’s complaints on Facebook about annual leave and Christmas bonus payments, the FWC noted that, while employees increasingly grumble about employers online, where a posting ‘can be seen by an uncontrollable number of people [it] is no longer a private matter but a public comment’ (Escape Hair Design at [52]). Accordingly, ‘it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity’ (Escape Hair Design at [53]).
When deciding The Good Guys [2011], the FWC reiterated that personal SM use is essentially public. In this case, the applicant had been dismissed because of remarks on his Facebook page expressing anger about perceived errors in his commission payments. The respondent believed the comments directly threatened the remuneration manager. A key consideration for the FWC was that, although the applicant had installed maximum privacy settings, and neither co-workers nor the employer were identified, ‘there were probably 11 co-workers in his select group of friends who arguably would have seen the entry posted’ (The Good Guys at [16]). The FWC stated:
Common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred. The fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues. (The Good Guys at [42–43])
However, later that year, in Stutsel v Linfox Australia [2011] FWA 8444, the FWC accepted that an employee’s online comments outside work could be considered private. The applicant was dismissed following 22 years’ employment with Linfox, after two managers named in some of the comments on the applicant's Facebook page lodged complaints. Even though numerous colleagues took part in the online discussions, the FWC noted that: ‘the Applicant’s Facebook page was not a web blog, intended to be on public display. It was not a public forum’ (Stutsel v Linfox at [61]).
For the FWC, ‘the nature of the milieu in which the remarks were made’ was significant (Stutsel v Linfox at [81]). In this case, the comments had:
very much the flavour of a group of friends letting off steam and trying to outdo one another in being outrageous. Indeed it has much of the flavour of a conversation in a pub or cafe, although conducted in an electronic format. (Stutsel v Linfox at [81])
After the FWC ruled in favour of Stutsel, the respondent appealed the decision. In Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 70997, a Full Bench of the FWC did ‘not agree altogether’ with the characterisation of Facebook conversations in the primary decision (Linfox v Stutsel at [26]). The tribunal observed that comments on Facebook have different characteristics than a ‘pub conversation’, including that they reach a potentially wider audience, are easily forwarded and leave a permanent written record. However, the Full Bench indicated also that it was ‘mindful of the need not to impose unrealistic standards’ on ‘ordinary discourse’ about employees’ working lives between workmates. The tribunal stated that ‘while the posting of derogatory, offensive and discriminatory statements about work colleagues and managers on Facebook might provide a valid reason for termination’, employers must consider the nature of comments and width of publication (Linfox v Stutsel at [25–26]).
Considering where the intrusion occurred and the nature of the private communication
In Mrs Robyn Vosper v Solibrooke Pty Ltd T/A Angie’s Cake Emporium [2016] FWC 1168, the FWC confirmed that employees are entitled to discuss their working lives when off duty without fear of dismissal. Vosper had worked as a permanent part-time cake shop assistant for 3 years, but 2 months after a transfer of business, the new owners summarily terminated her employment for poor performance and breach of confidentiality, the latter based on off-duty Facebook posts concerning her treatment at work. On Facebook, Vosper had told her sister that she had been made redundant and then offered casual employment on lower pay. Vosper’s sister then wrote to another employee: ‘Robyn isn’t being treated very well at all.’ Later that day, Vosper posted that she was ‘finishing up at Angie’s … Time to move on with a new focus’ (Robyn Vosper at [13]).
In finding the dismissal unfair, the FWC held that there was nothing derogatory or offensive in the Facebook statements, and that they contained no confidential business information. Further, the FWC deemed critical comments made by Vosper’s sister were neither fanciful nor outrageous. The decision to casualise Vosper’s employment ‘on its face could be perceived as the employee not being treated very well at all' (Robyn Vosper at [21]).
The FWC observed that:
An employee has the right to complain about their employment rights and their treatment at work. We do not live in a society where employees are prohibited from discussing their employment status or their treatment at work with others. (Robyn Vosper at [20])
Traditionally, public servants have been held to higher standards of personal behaviour than other employees. The FWC decision in Daniel Starr v Department of Human Services [2016] FWC 1460 establishes that the Public Service Act 1999 (Cth) (PS Act) does not extend to prohibiting employee expression of political opinions or criticisms of government, except where this impacts on work performance. Daniel Starr had been employed in Australia’s national social security agency, Centrelink, for 21 years when dismissed for comments on two SM sites over a 3-year period. Starr had discussed aspects of Centrelink activity, including application-processing times, the mental health and poverty cycle of clients, and government budgeting. The Department dismissed Starr for breaching Australian Public Service values (particularly, that employees be apolitical), the Code of Conduct, and Departmental policies, bringing the public service into disrepute and raising serious concerns about his ability to be impartial.
The FWC held that, while Starr had made online comments that breached Public Service values and policies, there was no evidence of reputational damage to the Department, or any basis for concluding that the posts had or would affect his work performance. For the FWC, this case raised the question of when an employer is entitled to regulate employees’ off-duty behaviour. The FWC followed the decision in McManus v Scott-Charlton [1996] that, for public interest reasons, government employers may need to exercise greater control over the private conduct of employees. Thus, if Starr’s online posts had breached the PS Act, or associated policies, this could justify dismissal. Nonetheless, considering Starr’s comments, the FWC stated that the PS Act:
would have to be construed expansively so as to confer on APS departments a general right to discipline their employees for political speech communicated outside of working hours. I do not consider that the provisions should be so expansively construed. (Daniel Starr at [72])
The FWC also interpreted the meaning of ‘apolitical’ in the PS Act, finding that, rather than referring to public servant behaviour ‘at all times outside of working hours’, it referred more narrowly to political impartiality in the exercise of Australian public service functions (Daniel Starr at [73]).
In addition, referring to the common law right to freedom of expression, and the implied freedom of political communication in Australian law, the FWC determined that provisions of the PS Act were ‘not sufficiently clear and unambiguous to displace the assumption that Parliament did not intend to interfere with the common law right, at least not in such a sweeping way’ (Daniel Starr at [72]).
The FWC also rejected the proposition that the Australian public service value of respecting all people required ‘all members of the APS to be “respectful” at all times outside of working hours, including in their expression of their attitude to the government of the day’ (emphasis added, Daniel Starr at [75]). The FWC added: ‘It would require express and absolutely unambiguous language in the statute to justify the conclusion that such a gross intrusion … was intended’ (Daniel Starr at [75]).
Considering the means used to obtain private information
Where an individual has applied privacy settings to their SM services, the way in which an employer accesses the comments can be at issue. The first FWC case comprehensively to examine unpermitted intrusions was Judith Wilkinson-Reed v Launtoy Pty Ltd T/A as Toyota Launceston [2014] FWC 644. Wilkinson-Reed had been employed as Human Resource Manager at Launceston Toyota for over 18 years, when the company summarily terminated her employment for serious misconduct. Her employer, Mr Nixon, alleged that, contrary to his directions and the company’s SM policy, she had communicated with Mr Nixon’s estranged wife on Facebook about ‘confidential’ workplace matters.
On Facebook, Wilkinson-Reed had written to Mrs Nixon about Mr Nixon, including gossip within the Launceston car world that ridiculed her employer. Mr Nixon could not have accessed these posts without his estranged wife’s password, which he admitted using without consent. The FWC held that the Facebook conversation did not breach the respondent’s SM policy because ‘it was in the manner of a private email’ (Wilkinson-Reed at [66]) and it was ‘plainly evident that it was not the intention of either woman that the content of the conversation take place in the public domain’ (Wilkinson-Reed at [63]).
Considering the means used to obtain the information and the purpose of the intrusion
Ms Kim Fallens v Serco Australia [2015] FWC 8394 is another recent decision in which the FWC has strongly indicated the importance of considering how an employer gains access to online posts. Fallens had been employed as a prison officer for over 8 years when Serco terminated her employment for serious misconduct involving the covert obtaining and transmission of confidential documents from the prison. The respondent furnished a transcript of Facebook communications from Fallens’ private account in evidence. At issue was how Serco obtained access to the password-protected account. Fallens’ ‘clearly aggrieved’ estranged husband, who had accessed her Facebook page ‘looking for evidence of an affair’ (Kim Fallens at [18]), had supplied the transcript to Serco. Ms Fallens argued that the online conversations were improperly and/or illegally obtained without consent, in breach of West Australian criminal law. Accepting this argument, the FWC observed:
I am also satisfied that the access was inappropriate, given the state of matrimonial affairs between Mr and Ms Fallens, and that acceptance of the material by Serco was also inappropriate. Impropriety between spouses involving unauthorised access to and distribution of private documents should be discouraged. The social consequences of such conduct cannot be positive. (Ms Kim Fallens at [20])
Concluding that Mr Fallens’ intention was to harm his estranged wife, the FWC decided not to admit the transcript as evidence.
Considering relevant attributes of the plaintiff, including age
In Stutsel v Linfox [2011] and Linfox v Stutsel [2012], discussed earlier, the applicant’s age was a significant consideration. He purported to poorly understand Facebook, to depend entirely on his family to manage his Facebook page, and to believe he had maximum privacy settings and his interactions were private.
The Stutsel cases suggest that, where privacy controls have proved inadequate, the FWC may consider the applicant’s age. Tribunals appear less sympathetic towards younger employees who claim they lack the competence to establish privacy controls. In Little v Credit Corp Limited t/as Credit Corp Group [2013] FWC 9642, which involved a young employee who argued that he thought more privacy obtained to his Facebook page, the FWC held that:
I have trouble accepting that the applicant believed his Facebook page was ‘private' and he did not understand how Facebook worked. For a young person it seems highly implausible that he was incapable of adjusting his privacy settings. [73]
In deciding Linfox v Stutsel [2012] on appeal, the Full Bench of the FWC noted that claims of ignorance ‘on the part of an older worker … might be viewed differently in the future’ (Linfox v Stutsel at [34]). With growing use of Facebook and employer adoption of SM policies, the FWC observed, ignorance may cease to carry weight.
The effect of SM policies
As noted earlier, research suggests that SM policies extend employer control over employee’s personal lives by imposing responsibilities and obligations on employees in relation to their off-duty SM use (Thornthwaite, 2016a). To date, the FWC has not made any substantial comments on the scope of organisational SM policies. In Stutsel v Linfox (at [87]) the FWC noted the necessity of organisations implementing SM policies and taking ‘pains to acquaint employees with those policies’. Several years later, after Linfox had implemented an SM policy, the FWC heard Malcolm Pearson v Linfox Australia Pty Ltd [2014] FWC 446. Pearson had refused to sign his employer’s SM policy, arguing that it applied outside working hours and ‘as Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work that is basic human rights on freedom of speech’. In finding against Pearson, the FWC approved the policy’s extension into off-duty communications, stating that an organisation’s implementation of an SM policy:
is clearly a legitimate exercise in acting to protect the reputation and security of a business … Gone is the time … where an employee might claim posts on social media are intended to be for private consumption only … it is difficult to see how a social media policy designed to protect an employer's reputation and security of the business could operate in an ‘at work’ context only. (Malcolm Pearson at [46])
The FWC’s only critical comments on internet-use policies to date appear in Wilkinson-Reed. In this decision, the FWC identified circumstances in which it was inappropriate for employers to intrude through such policies on private emails written off duty, stating that it was unlikely such a policy ‘would be found to have the requisite connection to the employment relationship such that an employee could be terminated’ (Wilkinson-Reed at [66]).
Discussion
With SM ever more entrenched in society, courts and tribunals have dealt with emergent industrial issues, using traditional legal doctrines and principles that may be increasingly anachronistic. As communication technology changes, so too can our conceptions of privacy. As Chief Justice of the High Court, the Hon. M. Gleeson observed:
The ground seems to me to be shifting under the concept of privacy … I used to think that having a telephone conversation was normally private, but you can't walk down the street without hearing a number of telephone conversations. (In McColl, 2009: 39)
In considering employee SM activity when off duty, the law needs to adapt to modern communication technologies and the expectations of a large and growing segment of society, by affording participants a reasonable expectation of privacy (Hodge, 2006–2007; Newell, 2010–2011; Powell, 2012). Referring to Katz, discussed earlier, Semitsu (2011) argues that courts should view Facebook as the 21st-century telephone booth, with Facebook often like a party-line conversation. For the Court in Katz, additional message recipients did not instantly defeat the privacy expectation because the expectation was decided on the basis of what a person seeks to preserve as private. Arguably, online strategies such as adopting privacy settings and limiting conversations to trusted ‘friends’ are equivalent to shutting the telephone booth door (Bies, 2013; Semitsu, 2011). More broadly, Newell (2010–2011) argues that, in conceptualising the test of ‘reasonableness’ concerning a reasonable expectation of privacy, courts should afford more respect to human dignity and the human interest in developing and maintaining personal identity.
The FWC and other tribunals initially tended to view employee communication online as a form of global broadcasting to which nobody could attach any real, let alone substantial, expectation of privacy. Decisions based on this view had the potential to shift the established boundary in the employment relationship between an employee’s public and private lives, enabling employers to shift the frontier of control in their favour. However, recent decisions indicate that the FWC is curtailing this shift. This article identifies an emerging line of reasoning in unfair dismissal cases, that employees are entitled to a reasonable expectation of privacy in certain circumstances. Applying the ALRC’s proposed non-exhaustive list of considerations for the reasonable expectation of privacy test (Table 1), recent FWC decisions have been shaped by considerations concerning the place of intrusion, the applicant’s conduct in manifesting a desire for privacy, the means used to obtain the information, the purpose of the intrusion, and personal attributes such as age. The FWC has indicated that in such circumstances an employee might expect privacy with personal online posts.
In addition, when considering whether particular topics may attract a reasonable expectation of privacy, the FWC has indicated that employees have a right to engage in ordinary discourse online about their working lives, including complaints about management treatment. As well, the FWC has recognised limits to an employer’s right to regulate employee expression outside work: criticising overly broad employer internet use policy in Wilkinson-Reed, and, in Daniel Starr, ruling that freedom of political expression outside work generally does extend to public servants, the exception being only where it may impair an individual’s work performance.
More broadly, although SM may be shifting the boundary between employees’ public and private lives towards greater employer control through organisational SM policies and through the scrutiny of employee off duty behaviour that it facilitates, this shift is not unassailable. As new boundaries are drawn, so too industrial tribunals may develop legal doctrine to protect the personal privacy of employees. This article indicates that, in Australia, the FWC is slowly expanding the principle laid down in Rose v Telstra that an employee has a right to a private life, to include an entitlement to express opinions critical of employers and working conditions online when off duty. Nonetheless, it remains to be seen how those drafting employer SM policies will respond to the potentially substantial privacy protections that the emerging elements of a reasonable expectation of privacy principle may provide. Comparative analysis of tribunal judgments is needed to establish whether similar shifts in judicial reasoning are taking place in other jurisdictions, as SM becomes an entrenched social phenomenon.
Acknowledgements
I would like to extend my sincere thanks to the editors and reviewers for their thoughtful and generous comments on an earlier draft of this article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.
Notes
1
See for example Mayberry v Kijani Investments Pty Ltd [2011]FWA 3496, Dover Ray v Real Insurance Pty Ltd [2010]FWA 8544 and [2010]FWAFB 2670, and O’Keefe v William Muirs Pty Ltd t/as Troy Williams the Good Guys [2011]FWA 5311.
2
For instance Preece v JD Wetherspoons plc ET/2104806/102011; and Teggart v TeleTech UK Ltd NIIT/704/11. Canadian courts appear to have adopted the same position, for instance in Leduc v Roman 2009 Carswell Ont 843 (Can.Ont.Sup.CtJ).
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Biographical note
Louise Thornthwaite is an Associate Professor, Department of Marketing and Management and Deputy Director, Centre for Workforce Futures, Faculty of Business and Economics, Macquarie University. She has published widely on digital technologies and work, employer association strategy, discrimination law, work and family policy, public sector employment relations, and developments in workers’ compensation law.
