Controversial social media policy largely 'reasonable'

A controversial social media guide published by the Australian Public Service Commission risks overreaching in some areas, but for the most part sets reasonable restrictions on employees, an employment lawyer says.

The nine-page guide requires APS employees not to make public comments that might lead a reasonable person to conclude they can't serve the government "impartially and professionally", adding that such comments could constitute a breach of the employer's code of conduct.

Examples of "risky" social media behaviour include criticising a current or previous agency or minister, and the guide warns employees that a right to participate in public debate isn't the same as a right to insult people.

The CPSU has called the guidance "completely unreasonable" (see below) but Henry William Lawyers principal and director Nick Noonan told HR Daily "they're fairly simplistic guidelines...it's about protecting the integrity of the public service". The guide provides a good example of a situation in which the public might think an employee can't perform their job impartially: if a customer service officer for Centrelink is part of a Facebook group that opposes current laws regarding welfare payments to migrants, "this might raise a concern about whether you would deal with all of your clients fairly and professionally", he says.

"To the greatest extent possible, [the APSC is] trying to prevent embarrassment or damage to their reputation and they're saying to employees, 'here are a whole range of ways we can be embarrassed and our reputation can be affected, we'd like you to think about these things as far as your social media use goes'." Some of the guide's responses to 'frequently asked questions', however, risk "overreach", Noonan says. The guide says employees can breach the code of conduct by sending material in a private email to a friend, as "there's nothing to stop your friend taking a screenshot of that email, including your personal details, and sending it to other people or posting it all over the internet".

"You can really see the potential for employees to be upset about that," Noonan says, but if an employee were to be dismissed in such a situation and then challenge that decision, it is more likely than not that the Fair Work Commission would find the dismissal harsh, as it recognises "where employees are intending to act in a private capacity".

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