"Get out of my space!" Activities on social networking sites CAN lead to the termination of employment
Jun 2009 |With millions of worldwide users of Facebook alone, it is no wonder that social networking sites like Facebook, Twitter and Myspace have received a lot of media attention in recent months.
A great deal of this attention has focused on the discipline of employees, often leading to the termination of employment, who have made postings on these sites that are derogatory or critical of their employers or their employment.
Can this conduct actually give rise to a breach of the employment contract and the right for an employer to terminate an employee’s employment?
Few written employment contracts (or employment policies for that matter), contain provisions relating to the use of social networking sites by employees. If there are no express terms covering how employees should conduct themselves on such sites, it might be argued that employers cannot rely on adverse postings concerning an employee’s employment, as a valid basis on which to terminate their employment. This might particularly be the case if the postings were made outside of work hours and not utilising systems or hardware belonging to the employer.
By way of contrast, what might be said if an employee’s posting was derogatory of, or critical of, an employer. For example, what if the posting said something as simple as “My boss is an idiot” or “My job sucks”? Such comments could indeed provide a basis for termination, particularly if they breach an implied obligation of mutual trust and confidence or the fiduciary relationship between employer and employee. Surely if the comments go to the heart of the employment relationship, then they could be relied upon to substantiate a termination of the employment. Depending on what is said and in what context, the conduct could even go so far as amounting to a malicious or injurious falsehood, calculated to injure an employer in respect of their business, or misleading conduct under the Trade Practices Act 1974 (Cth).