Social media and dismissal: Towards a reasonable expectation of privacy?

Abstract

For over a decade, industrial tribunals have been adjudicating unfair dismissal cases concerning employees’ use of social media outside work. Early analyses suggested that tribunals tended to consider social media a public domain, in which communication constituted a broadcasting to the world at large, an interpretation, scholars argued, that would facilitate a shift in the boundaries of the employment relationship towards greater employer control of employees’ private lives. Has this continued to be the case as social media has become an ever more entrenched social phenomenon? Through an examination of decisions by the Australian Fair Work Commission since the dawn of Facebook in 2004, with a particular focus on more recent judgments, this article argues that the reasoning of industrial tribunals may be changing towards recognition of a reasonable expectation of privacy for employees when using social media in their private lives. This has implications for the shifting boundary between employees’ public and private lives, suggesting a need for continuing and comparative analysis of industrial tribunal decisions involving employee social media use.