Online anonymity, blurred lines between work and personal time, ideals of freedom of expression, amongst myriad other reasons make investigating social media misuse in the workplace challenging.
As one employee recently discovered, she did not have open slather to say what she liked about her employer on micro-blogging site Twitter; despite her comments being made both anonymously and outside of work.
Her case highlights some of the more crucial aspects of modern workplace investigations and particularly how far employers should (and can) go to protect their public reputation and interests.
The employee in question (a public affairs officer within the Federal Immigration Department) regularly took to Twitter to vent her criticisms, observations and other comments regarding department personnel, government policies and the Immigration portfolio generally. The Twitter account did not disclose her name or place of work.
The employee had a tumultuous history with the Department, having made previous bullying allegations against her manager which were investigated and found to be unsubstantiated.
A second internal HR investigation by the Department into the tweeted comments found that the employee was the author and made recommendations on possible disciplinary sanctions against her, one of which included termination of employment.
When invited to comment on the recommended sanctions, the employee instead took the matter to Court, claiming adverse action and seeking an injunction to prevent her perceived imminent termination.
Before the Federal Circuit Court, the employee put forward a raft of accusations against her employer. These included allegations of adverse action, bullying and harassment, bias, victimisation and discrimination as well as retaliation for her previous bullying complaint.
In the employee’s own words the tweets “were a simple expression of political opinion” made in her own time, away from work.
This right of expression, she suggested, was a constitutionally protected ‘freedom of speech’ and operated to prevent her dismissal from the workplace.
The Department, unsurprisingly, thought otherwise.
Not only did it contend that the investigation process was incomplete (that is, no final decision had been made as to the outcome), but that the tweets were a clear breach of two explicit departmental policies – a code of conduct and social media guidelines warranting investigation with possible sanctions including dismissal.
The Court agreed with the employer that an injunction should not be issued. It considered the review and subsequent investigation of the employee’s alleged misconduct as warranted because the comments gave rise to serious breaches of workplace policy.
It was found that the employee’s claims were “premature” as the internal investigative processes had not yet been finalised, with no outcome having yet been decided.
On that basis, the employee’s injunction was denied and with an accompanying recommendation that the employer’s internal processes be concluded.
The Court made a further point to confirm that none of the employee’s comments were protected by an apparent right of political expression.
The Court observed that the unfettered right to political comment claimed by the employee does not exist.
Lessons for Employers
Each and every week employers can be faced with unreasonable, misconceived or even fabricated claims by disgruntled employees.
The present case more likely falls within the misconceived category in that the employee (incorrectly) believed that her social media ‘rants’ about her employer were constitutionally protected political comment.
When social media misconduct occurs, employers need to know how to properly investigate it so that:
- they can make sound determinations based on the evidence; and
- any disciplinary action taken is defensible before a court or industrial tribunal.
A combination of a solid social media policy, a transparent HR investigation (including liaising with the alleged wrongdoer and providing opportunities for the employee’s comment), formed the bedrock of the profiled employer’s defence to the ultimately unsuccessful legal claim.
 Banerji v Bowles  FCCA 1052 (9 August 2013)