Can employers fire employees for what they post online?
The Australian Fair Work Commission is currently considering the controversial dismissal of reporter Antoinette Lattouf by broadcaster ABC. Lattouf was dismissed from her role as a journalist for posting pro-Palestinian posts on her personal social media about the war in Gaza.
ABC terminated Lattouf's employment on the basis that her posts were in breach of its social media policy. Lattouf, on the other hand, claims her termination was unlawful and that she was terminated because of her political opinion and because of her race (she has Lebanese heritage).
In Lattouf's case, her social media posts aligned with one side in a polarising conflict that is frequently in the news. As a news outlet, ABC has an interest in appearing neutral and unbiased in its presentation of international and domestic current affairs. Arguably, if its reporters are publicly seen to be advocating for, or supporting, a particular side of a conflict, those actions might impact on the public's perception of impartiality and therefore be potentially damaging to its reputation.
The situation is complicated by the Sydney Morning Herald reporting that it had seen a chain of leaked WhatsApp messages that purport to show an Israeli lobby group sought to have Lattouf dismissed. If that is the case, it raises questions about ABC's purported independence and any such argument it put forward to justify termination.
Social media blurs lines
The prevalence of social media, and the blurring of the lines between work and personal lives, means employers should be watching the outcome of the Lattouf case with interest.
Could an employee in New Zealand be lawfully terminated for expressing their personal views on social media? The short answer is yes. While in New Zealand we have protections in place to guard our freedom of expression (as does Australia), those protections are generally only against the state (rather than our employers) and are not absolute freedoms. An employee can contract out of their freedom to say and do whatever they like in their own time, and employees commonly do so.
For example, many terms of employment prohibit an employee from disclosing their employer's confidential information outside of work or publishing negative comments about their employer. An employee has agreed to limit their freedom of expression in exchange for paid employment.
Investigating conduct outside of work
Usually there are two situations in New Zealand where an employer can investigate and discipline an employee for their conduct outside of work:
- Where the employee's conduct outside of work is damaging (or potentially damaging) to the employer's reputation or business and there is a clear link between the conduct and employment.
- Where the employee's conduct damages the trust and confidence the employer has in the employee.
Cases involving personal social media posts have more recently come before the Employment Relations Authority and the Employment Court in New Zealand in relation to posts made by employees about COVID-19 vaccines and government COVID mandates.
There have also been disciplinary cases where employees who had told their employer they were sick, posted pictures of themselves at events on social media or where an employee "liked" a negative Facebook post about their employer.
These cases illustrate the importance of an employer having a clear internet/social media policy which gives guidance on unacceptable conduct by employees.
Susan Rowe is a partner at Buddle Findlay in Christchurch, specialising in litigation, local government, insurance, industrial relations, and health and safety. Shaun Brookes is a special counsel at Buddle Findlay in Christchurch, specialising in employment law, industrial relations, human rights, and health and safety.
