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My Digital Self: How your online footprint can affect your career

With technology progressively mediating more of our lives, our digital footprint is becoming inescapable. Under Article 12 of the The Universal Declaration of Human Rights, ‘No one shall be subjected to arbitrary interference with privacy, family, home or correspondence.’ Despite this, employers have been able to utilise technology to monitor employees beyond their contracted hours; how you are presented online even dictates what jobs you are offered and which ones you aren’t. To what extent should our careers impact our personal lives and the content we share? And, are employers within their rights to monitor employees’ social media presence?

In Australia there is no legislative right to privacy (although an inferred right to limited freedom of speech does exist). This means there is no specific remedy or protection available for personal privacy. However, this does not mean that your workplace is allowed to pry into your personal life without regulation. Instead general legislation like the Fair Work Act 2009, the Fair Work Commission and individual employee agreements regulate an employees right to privacy.  

Any conduct that is in breach of either an express or implied term within an employment contract can result in dismissal. If content you share may damage or negatively impact the reputation of your employer you may also face dismissal. 

The extent to which an employer can regulate your activity online outside of your employment, was debated in Isileli “Israel” Folau v Rugby Australia Limited & Anor. The case centered on Mr Folau’s dismissal by Rugby Australia after sharing homophobic and discrimnatory sentiments on his social media. Mr Folau argued his dismissal was a breach of his freedom of religion and privacy as it was outside the parameters of his employment. 

However, Mr Folau was bound by the bylaws of his contract which explicitly banned discriminatory behaviour. Rugby Australia argued Mr Folau’s actions fell outside acceptable conduct for his role, even though it was not directly related to his position. 

The basic question deliberated was if Mr Folau’s actions were sufficiently related to employment, and, if so, could he be held to his employment policy? Unfortunately due to settlement, there was no final determination on just how far an employer may restrict the content you share online. 

Despite this, there are still some valuable takeaways from this case. Because workplace relations law must fit into what is reasonable in the context of running a business, your employer can only have bearing on that which is reasonable or necessary for the purpose of the business. If this is found not to be the case, the Fair Work Commission is able to declare a dismissal to be unfair. Thus, your employer is only allowed to determine your digital footprint to a certain extent. 

For prospective job opportunities, employers are able to use social media platforms to determine whether you are the right candidate for the job. Therefore, you should be aware of what type of content you are sharing online and if it will affect your job performance or employment conduct agreements. 

Overall, employers can monitor employees’ online presence. Through social media policies and conduct agreements the type of content you share online can be regulated. However, unless these regulations are reasonable in the context of your employment they are not valid. If you have been recently dismissed due to content you have shared online, it is best to seek legal advice on whether your dismissal was fair. 

This article was co-written by Legally Yours Intern, Anastasia Misarvidis-Tyshing and Legally Yours Lawyer Network Member, David Heasley from Heasley Lawyers.

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This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.