Speaking to My Business’s sister publication Lawyers Weekly after winning Workplace Relations Partner of the Year at the recent Lawyers Weekly Partner of the Year Awards, Maurice Blackburn partner Josh Bornstein (pictured) said that while the Israel Folau saga had raised the issue of freedom of religious expression in mainstream conversation, the broader issue of employee rights to express views online is not new.
His “fundamental concern”, he explained, is that employers are using employment contracts to “control more and more of employees’ lives well beyond the workplace”, in ways that undermine the rights of a citizen to engage in debate.
“What we’re seeing is that companies are promulgating very, very broad aspirations in their codes of conduct and policy documents. Then they’re giving those aspirations policies contractual force,” he argued.
“Often, when an employee signs an employment contract, it contains a very similar provision, really, that have been leading to contracts with similar provisions, saying the employee will comply with company policies and any company values and any code of conduct.
“At the time they sign the contract, they have not seen any of these documents. But nevertheless, it’s binding. Interestingly, the contracts usually also, almost invariably, contain a provision saying, ‘You are bound to comply with those commitments in those documents, but the company is not’.”
Businesses themselves are not bound to promulgate and comply with the term “bad use”, Mr Bornstein continued, as well as codes of conduct. There is, thus, an asymmetry from the outset, he surmised, and because such policies are “so broadly crafted”, they effectively mean that an employee has to comply, whether they are at work or not.
“And because the aspirations are so utopian, and wide-ranging, it really means anyone caught up in a controversy is vulnerable to losing their livelihood,” he added.
There are “certain clear parameters” that can be drawn, he qualified, such as if a lawyer was to engage in unlawful conduct such as race hate speech online or in public.
But employees are “just one tweak away” from facing a workplace investigation and being accused of breaching company codes of conduct, and then “losing their career in a blaze of publicity”.
Mr Bornstein said: “If a lawyer at a law firm, for example, heavily criticised the way in which Earth Day is celebrated in this country, and that then produced a lot of media commentary, a bunch of journalists decided to target that lawyer, politicians started to apply pressure, [then that lawyer] would be in a very similar position to a lot of employees who face disciplinary action or the loss of their livelihood, because they’ve expressed a controversial view.
“That’s, I think, a lamentable trend in the labour market, and I think it, more broadly in our society.
“It undermines democracy. It undermines the rights of people to engage in political debate, to engage in controversy, to have strong arguments and public arguments about important issues.”
Restrictions ‘not only legitimate, but necessary’
Others believe that policies and contractual restrictions, particularly around the use of social media by employees, are essential in the modern workplace, both to protect the business and to comply with all the red tape governing employment.
Georgie Chapman, a partner at HR Legal, told My Business that having such a requirement in writing is “not only legitimate, but is necessary”.
“An employer is within its rights to issue directions under workplace policies regarding employee use of social media (including use which occurs out of hours, on an employee’s private device), provided that such use materially impacts the employment relationship,” Ms Chapman explained.
“This includes circumstances where the employer will suffer significant reputational damage as a result of the employee’s social media comments; and the use of social media impacts the relationship between colleagues (e.g. sexual harassment or bullying which occurs via Facebook or other like media which causes a risk to employee health and safety).”
According to Ms Chapman, regulators are taking a ‘commonsense approach’ when evaluating whether social media activities warrant disciplinary action.
“The industrial tribunals have in most cases demonstrated a commonsense approach to evaluating whether such social media use justifies disciplinary action, including termination of employment, and have reinforced that having in place such policies is not only legitimate, but is necessary for the employer to take valid disciplinary action against the employee concerned,” she said.
“Whether the policy was a ‘reasonable direction’ will be assessed in the context of the comments made, the nexus to the employment relationship and the consequences (if any) on the employer.”
Not having policies that address problematic behaviour, Ms Chapman added, can have “wide-reaching consequences”.
“Employers are often criticised by tribunals and courts for failing to implement such policies which could have prevented the contravening conduct in the first place,” she said.
Businesses have a right, even duty, to mitigate risk
Far from businesses wanting to dictate what their workforce can and cannot do outside of working hours, such policies and contractual stipulations are a necessary part of outlining the employer’s expected code of conduct for their employees.
Joe Murphy, managing director, national workplace at Australian Business Lawyers, told My Business that previous rulings by regulatory bodies — chiefly the Fair Work Commission — have demonstrated the need for such documented practices, so that both employer and employee understand what is expected and why.
“There are two factors that have driven this area, and that is the evolving nature of society coupled with the evolution of technology. It’s not an attempt to control employees’ lives,” Mr Murphy said.
“In fact, the reason that the expansion of what has been referred to as controlling employees through their contracts has evolved, is because employers have found out the hard way through decisions that are well documented in the Fair Work Commission and other tribunals and in courts, that have demonstrated that employers need to do certain things in order to be able to... manage the appropriate conduct in the workplace, and in connection with the workplace.”
Mr Murphy said that social media usage outside of work is one of the more common debates involving freedom of expression versus business protection.
“Businesses do have a right to put measures in place to manage the risk to their reputation as a business, and also to manage health and safety concerns in the workplace,” he said.
“It’s not simply good enough for employers to throw their hands in the air and say ‘we can’t control or influence these behaviours because it’s outside of work hours’. It’s not something that they can ignore in that way either.
“It’s well documented, in Fair Work Commission decisions mostly, that that behaviour has resulted in scenarios or situations in the workplace where employers have found that they’ve needed to put in place policies, procedures and contractual provisions that assist them to, firstly, educate employees about the appropriate way to behave in the workplace, and the appropriate way to behave if they want to be an ongoing employee with any particular employer. And that means how you present yourself to the broader community, to the public.”
According to Mr Murphy, businesses have every right to try and mitigate risks to their operations, including their reputation and commercial interests, and that previous rulings by the Fair Work Commission support this.
“It’s been demonstrated very clearly through those Commission decisions that an employer should have a degree of ability to manage the reputation of the organisation, and that [includes] through the reputation of the individual and their conduct outside of the workplace as well, to a degree,” he said.
“There are cases that demonstrate that there is a tipping point, or a threshold point, at which it is no longer reasonable for an employer to manage an employee’s conduct outside the workplace.
“And the Fair Work Commission has demonstrated that, regardless of whether it’s in a contract or a policy, if it is not reasonable in normal circumstances for an employer to take into account an employee’s conduct out of the workplace, then the employer won’t benefit from that. This is not a simple case of an employer putting something in a contract and being able to rely on it as a hard and fast rule.”
Not a free licence for employers
Mr Murphy cautioned employers that documented social media usage requirements are not a free pass to fire or discipline employees at will. It is important that policies and contracts are fair and reasonable, and also that they outline why they have been put in place.
“Where we have disciplinary matters and matters involving termination of employment, the Fair Work Commission is not bound by those matters, but they are bound to take them into account,” he said.
“So, if it is not a reasonable requirement, irrespective of whether it’s in a contract or a policy, it will not provide the employer with an absolute right to take action against an employee.”
He concluded: “Employers and employees pretty much follow the same process: if you are on social media, and it is reasonably apparent or will be reasonably apparent that you are employed by a particular organisation, and that gives rise to risk to the reputation of the organisation, then it may in most circumstances enliven the employer’s ability to take into account conduct outside the workplace, that occurs outside of work hours and not in the workplace.”