Employee Conduct on Social Media

LG Leader March 2019

Given the amount of time that council officers spend with one another at work, it is almost inevitable that social gatherings will occur outside of work hours.  In the modern era, these “social gatherings” have extended into online chat groups which have the great benefit of forging strong friendships inside and outside of work hours.  But what happens when one employee’s conduct on a “night out” results in inappropriate messages to other colleagues?

The case of Luke Colwell v Sydney International Container Terminals Pty Ltd [2018] FWC 174 involved Mr Colwell consuming too many beers one night and deciding to send a pornographic video over Facebook messenger to 19 colleagues.  Some of the colleagues were offended by the message and one replied to the message stating that the content was inappropriate and requested to be excluded from any further messages.

Upon returning to work (and sobriety) the next day, Mr Colwell apologised to all his colleagues about his actions the night before.  Whilst none of the employees complained to the company about Mr Colwell’s conduct, the Human Resources Department became aware of the incident and undertook their own investigation.

The consequence was Mr Colwell being terminated from his employment for serious and wilful misconduct, which subsequently resulted in a claim for unfair dismissal.  Mr Colwell’s argument was that his conduct occurred outside of work hours, was not work related and that no one had made any complaint about his conduct to the company.

Nevertheless, the Fair Work Commission found that the “relevant nexus” was that the Facebook friendships in the messenger app stemmed purely from the employee’s work relationships.  Furthermore, the Commission confirmed that there was no need for a formal complaint to be received in order for an investigation to occur.  As a result, the Commission upheld Mr Colwell’s termination.

The lesson for councils is that you do not need to wait for any formal complaint to be made before an investigation is launched into an employee’s conduct.  Equally, council officers need to be aware that their conduct and behaviour towards other council employees outside of work can form the relevant “nexus” to connect the conduct to the workplace.  Finally, councils should put in place detailed policies on social media conduct and ensure that council officers are aware of their expectations when interacting on (the forever multiplying) social media apps.