You can’t do or say that – even in your own time!
When do private comments become a legitimate concern for an employer?
Social media challenges the divide between private and public life; between conduct at work and conduct out of work hours. While ordinarily employers do not have the right to involve themselves in the private life of their employees, social media can bring supposedly private comments by employees into the workplace with relative ease.
In John v Health Secretary in respect of the Ambulance Service of NSW  NSWIRComm 1073, the NSW Industrial Relations Commission upheld the dismissal of a paramedic for misconduct during her attendance at an anti-lockdown protest in her own time.
Ms John was a paramedic employed in the NSW Health system by NSW Ambulance. On 13 July 2021, Ms John was required to self-isolate under public health orders for 14 days following exposure to a Covid-19 case. It would be reasonable to expect a paramedic to comply with health orders.
On 24 July 2021, while the Greater Sydney region was in a Covid-19 lockdown, a protest rally took place in the Sydney CBD. Ms John participated in defiance of the health orders.
Ms John live-streamed her participation on TikTok, using an account that identified her as a paramedic. During the livestream, Ms John made derogatory and distasteful remarks about NSW Police.
Later, on 24 July 2021, Ms John called her supervisor. She informed him that she had “fucked up” and explained her participation in the protest. She said that she had “uploaded stuff to [her] TikTok account and that someone [had] taken it upon [themselves] to share it all over Twitter.”
Was it misconduct connected to work?
There was no contest that Ms John engaged in misconduct in relation to her work. As a paramedic, Ms John was expected to comply with the law and, in her role, work with NSW Police.
The question was whether the dismissal was harsh.
Commissioner Sloan accepted Ms John had reasons for attending the protest. However, “they do not explain her decision to livestream the event, much less the damaging and offensive commentary which she offered to accompany it.” It was accepted that her comments about police “might make it difficult for police officers to feel comfortable working with her in the future”. The Commission accepted that “[i]t is difficult to imagine a more serious case of misuse of social media”.
Ms John was unsuccessful in her unfair dismissal claim.
Unlike the United States, Australia provides no free-standing, wideranging freedom of speech in its Constitution or, for that matter, employment law.
That does not mean all expression of opinion on social media is subject to sanction. Context and the seniority of the employee matter. Here, Ms John was in an important role and required to interact with others, like the NSW Police. Her attending the rally and making the comments she did created an appreciable tension with her employment, role and responsibilities.
The case is a timely reminder for employees of how easily social media can bring out-of-hours conduct into the workplace. As Gageler J of the High Court of Australia said, a level of circumspection relevant to the employee’s position, seniority and the circumstances of the communication is required for so long as you choose to remain an employee.
Employees cannot just ignore their contractual and statutory duties simply because they have, and can express, an opinion or view. Employees are citizens of many communities, including a workplace community. By accepting employment with an employer, an employee agrees to act in good faith and in the best interests of the employer. While everyone is entitled to personal views, there is a time and place for their expression and much to be said for the respectful manner of their expression. For Ms John, the occasion was not at the lockdown rally when she was meant to be isolating!
Author: James Mattson