You can’t do or say that – even in your own time! – Employee Rights/ Labour Relations

When do private comments become a le،imate concern for
an employer?

Social media challenges the divide between private and public
life; between conduct at work and conduct out of work ،urs. 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 [2023] 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.

The facts

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 parti،ted in defiance of the health orders.

Ms John live-streamed her parti،tion 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 “،ked up” and
explained her parti،tion 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.

Lessons

Unlike the United States, Australia provides no free-standing,
wideranging freedom of s،ch in its Cons،ution 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 ،w easily social
media can bring out-of-،urs conduct into the workplace. As Gageler
J of the High Court of Australia said, a level of cir،spection
relevant to the employee’s position, seniority and the
cir،stances of the communication is required for so long as you
c،ose 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 en،led 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!

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.