On Saturday 6 August 2023, Elon Musk, CEO of social media platform ‘X’, formally known as Twitter, released the following post:
“If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill.
No limit.
Please let us know.”
This interesting post raises the question: Is it legal for an employer to terminate an employee’s contract because of their posts and likes on social media?
Whilst Musk takes a ‘Freedom of Speech’ perspective, his rejection of ‘wokeness’ must be taken with caution for Australian ‘X’ users and employees. In New South Wales, employees are protected by a set of ethical codes stipulated in the Fair Work Act 2009 (Cth). However, unlike America whereby Mr Musk made his post, Australia does not have ‘Freedom of Speech’ imbedded in its Constitution. Instead, Australia has various laws which restrict speech where prejudice and unfair treatment may occur. The Sex Discrimination Act 1944 (Cth) is a great example of this, which restricts discrimination on the ground of sex, gender identity or intersex status.
Social Media Clauses in Contracts
Due to the accessibility and prevalence of social media use in today’s society, many companies have begun including social media clauses within their contracts of employment. A breach of contractual clause was seen in the infamous case of Israel Folau, whereby Rugby Australia cancelled Mr Folau’s $4 million contract due to alleged homophobia within his Instagram posts. Whist Mr Folau argued unfair dismissal, on the basis that he was merely expressing his Christian faith, Rugby Australia declared they, as employers, hold the capacity to regulate the behaviour of their employers, on and off social media, to ensure that they do not contravene the company’s code of conduct.
What if there is no Social Media Clause?
In February 2022, the Fair Work Commission held valid the summary dismissal of an employee at the Australian Council of Trade Unions, after the man posted derogatory material on Facebook relating to the ‘Black Lives Matter’ movement, homosexuality, antisemitism, and domestic violence.
Whilst the employee argued that the posts were made only to his seventy Facebook friends outside of work hours, the Fair Work Commission held that this was irrelevant, as the posts were, at the end of the day, made publicly.
Therefore, although Mr Musk makes a strong push towards Freedom of Speech, it is important to be careful of what opinions employees express publicly, especially if they are contrary to the values and reputation of your employer!
If you or someone you know wish to discuss this issue further, please do not hesitate to contact our offices on (02) 8917 8700.