Social media platforms may be considered an extension of the workplace for politicians, finds NSW Civil and Administrative Tribunal (NCAT). It opens up room to question, where can HR draw the line in terms of their legal obligations around an employee’s online activity?
Online political exchanges may constitute misconduct in the workplace, finds a landmark judgement by the NSW Civil and Administrative Tribunal (NCAT).
Former One Nation MP Mark Latham was ordered to pay $100,000, the maximum penalty, in compensation for the unlawful vilification and sexual harassment of Sydney MP Alex Greenwich, via a post on the platform formerly known as Twitter.
This ruling comes after a ruling in which the Federal Court ordered Latham to pay $140,000 in damages to Greenwich for defamation in September 2024 (which Latham has appealed), begging the question: is social media, and by extension other online platforms, now considered part of the modern workplace?
In the case of politicians in New South Wales, Aaron Goonrey, Partner at Pinsent Masons says the answer is ‘yes’.
For other sectors and industries, he says, “[This case] will open up possible recourse for [employees] to claim defamation [and] vilification… The political context was unusual, but the legal principles are universal.”
“It’s not necessarily a new concept – employers deciding what they may or may not do in relation to employee conduct outside the physical workplace… but it is a wake-up call and this may be quite significant for employers, particularly those that have a workforce that is active on social media,” he adds.
Is misconduct on social media always considered workplace misconduct?
Greenwich’s legal team claimed that since virtual communication by video conferencing, telephone and other means are now considered part of the modern workplace – citing past cases – it is unrealistic to require that physical presence is required to defend the claim.
Previously, the Fair Work Commission (FWC) has ruled that misconduct on social media can provide a valid reason to dismiss an employee, in the case of Corry v Australian Council of Trade Unions [2022] FWC 288, where an ACTU employee published a number of allegedly homophobic and racist posts on Facebook (now Meta) in response to the anti-vaccine protests in Melbourne in 2021.
Critically, the Greenwich v Latham case also confirms that a complainant does not need to be in a conventional employment relationship, which opens the door to a wide range of situations that claimants may previously have considered beyond reach, says Goonrey.
“Online abuse targeting someone’s sexuality, gender, race, or other protected attribute, by a colleague, a manager, or even a stranger (think customer) who shares a social media platform is now clearly within scope,” he says.
“The [Greenwich v Latham] case illustrates that employers should be putting safeguards in place to ensure that all of their workers are aware of the ramifications if they decide to act online in a way that is considered not just discourteous but verging on vilification.”
He says that an employer’s obligations apply to all workers, which carries a broader definition than ‘employees’ in Australian law.
“Your obligations do not stop at your direct payroll – contractors, labour hire workers, subcontractors and others engaged by your organisation can create very real legal and reputational consequences for you through their online conduct, even where no employment contract exists,” he says.
An organisation’s social media policies and training needs to reach all workers, not just the people they employ in the traditional sense, he adds.
Is this issue becoming more common?
In Goonrey’s experience, cases involving employees who are posting offensive content on social media are increasing.
He says three forces are converging:
- The digitisation of work has destabilised the boundary between personal and professional online conduct
- Social media creates a permanent, self-evident record that makes these cases far easier to prove than historical ‘he-said-she-said’ complaints
- The Respect@Work reforms have raised community awareness of rights and lowered the barrier to bringing a claim. High-profile outcomes such as Greenwich v Latham compound that effect.
“Every reported award of damages educates potential complainants and their advisers that a pathway exists,” Goonrey says.
It is also worth noting the distinction between an increase in conduct and an increase in accountability, he says.
“Much of what we are seeing is not necessarily more harassment occurring, but more of it being named, documented and pursued.”
What responsibility do employers have in these cases?
Employers have a legal responsibility to ensure the health and safety of their employees at work, including both physical and psychosocial safety, in accordance with Federal laws (including the Fair Work Act 2009 and Work Health and Safety Act 2011) operating alongside State and Territory legislation.
However, whether an employer has an obligation to respond to defamation, vilification or sexual harassment carried out online by employees, hinges on whether the grievance is a safety issue or an interpersonal dispute, says Goonrey.
HR can use this distinction to determine whether the issue necessitates their action.
“Interpersonal issues can be distinct from safety issues, and once you start involving yourself in interpersonal issues – and if you can’t resolve them – then you may ultimately become a party because you’ve simply tried to help,” he says.
“You’ve assumed a risk that maybe you didn’t necessarily need to take on… Sometimes you are not obliged to resolve everything.”
Goonrey adds that some employers need to work out what, internally, they’re comfortable dealing with.
“Are they going to deal with all issues involving all people matters, even those that occur outside of the physical workplace because they’ve been reported to HR? Or is there a threshold limit?”
Goonrey outlines two situations where HR would need to act.
An employee may say, ‘I’m offended by this and I need you, the employer, to take action because it’s a risk to my health and safety’ or ‘I feel aggrieved because this person is discriminating against me’.
“Both of these statements carry real legal force,” he says.
“The first engages the employer’s obligations under work health and safety legislation, which expressly covers psychological harm, not just physical injury.
“The second triggers the employer’s obligations under anti-discrimination law and, since the Respect@Work reforms, a positive duty that requires the employer to act proactively, not simply react when something goes wrong.”
In NSW, individuals are protected by the Anti-Discrimination Act 1977, which is the legislation Greenwich’s team used in their case.
“In either case, an employer who receives that complaint and does nothing is not just behaving poorly, they are potentially in breach of the law,” says Goonrey.
While the Greenwich v Latham case reveals that employees now have a clearer course of action to take against an offending employee as an individual, the existence of individual liability does not let the employer off the hook. In fact, the two run in parallel, he says.
An employee who is harassed or vilified can pursue the individual responsible directly. However, that same conduct simultaneously triggers the employer’s own separate legal obligations: vicarious liability if the conduct occurred in the course of employment, WHS obligations to protect the psychological safety of their workers and the positive duty under the Sex Discrimination Act to actively prevent this conduct from occurring in the first place, says Goonrey.
“The employer cannot treat individual liability as a reason to step back. If anything, a complaint made against an individual employee is the clearest possible signal that the employer needs to step forward,” says Goonrey.
What steps can HR take to protect their organisation from legal exposure in cases like this?
When a complaint arises, employers need to ensure they take all reasonable steps to address the issue, thereby discharging their duties in relation to the issue.
HR can help employers take proactive and reactive steps to mitigate legal risk in cases like these, says Goonrey.
For example:
1. “Employers must exercise the positive duty to prevent and/or eliminate harassment and discrimination within the workplace,” he says.
This can be achieved by ensuring the following are regularly audited:
- Discrimination and harassment policies
- Anti-discrimination and harassment training
- Grievance procedures
- Relevant clauses in the employment agreement
2. If an issue does arise, HR can compile a checklist of questions to determine their business’s level of responsibility. For instance, Goonrey suggests asking:
- Does the issue have anything to do with the workplace?
- Do the individuals have close contact with one another?
- How often do they see one another?
- Do they liaise with each other?
3. If responses to the checklist indicate that HR should get involved, the best next step is mediation, says Goonrey.
“Consider de-escalating the situation through alternative dispute resolution to avoid the situation becoming overly litigious,” he adds.
The key takeaway for HR
Ultimately, the fact that employees make complaints about the out-of-hours, personal social media conduct of their colleagues is not new. However, it is something employers need to be increasingly cognisant of and handle with care, particularly given the scale of the damages ordered in cases like Greenwich v Latham, says Goonrey.
“The message for HR is clear: the line between personal and professional online conduct has effectively disappeared, and the legal framework has moved to reflect that reality,” he says.
All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.
