Can — and should — what you do on social media cost you your career? Are you, as Mike Carlton learned the hard way, responsible only for what you do in your professional role, or does an employer have the right to suspend or sack you for what you do outside work hours?

As the barriers between work and private life break down, the internet and our online activities provide a myriad opportunities for private information to become public knowledge. We now live in a world where Google can track our whereabouts at any time of day, and smartphone applications can often only be used if we consent to the disclosure of our exact locations and our internet browsing history. An individual’s private domain narrows every day as the government, employers and organisations discover new ways to monitor our lives.

An employer’s increased ability to access our private lives can have dire ramifications on our employment status. The key deciding factor in cases involving out-of-work conduct is whether the misconduct in question has a relevant nexus to a person’s employment. This deciding factor is inherently broad, and determining whether a connection exists will depend on the individual factual scenarios.

A quick look at two cases against Telstra in recent years starkly highlights this point. In the case of Rose v Telstra, a brawl in a hotel room between employees while on a work trip did not have the requisite negative impact on Telstra’s reputation. However, in the 2007 case of Streeter v Telstra, an employee who had sexual relations with people in a hotel room while her (offended) colleagues were trying sleep next to her was dismissed, because Telstra thought her conduct was incompatible with her duties to her employer.

For today’s employees, the realities of immediate access to information and social media coupled with the risk of adverse media attention that may damage an employer’s brand or reputation has meant that employees are increasingly being disciplined for conduct unrelated to their work. This is particularly a risk for people in high-profile positions.

One recent example is footballer Todd Carney, who had his contract terminated when a Snapchat photo of him “bubbling” was uploaded onto Twitter. He did not take the photo, upload it himself or even agree to the publication. Moreover, while the act was absolutely inappropriate, it was victimless, yet team officials determined that the mere fact he performed the conduct had brought the team into disrepute, leading to his eventual sacking. Other sporting personalities who suffered similar disciplinary action for out of work conduct were AFL football player Toby Greene, whose drunken night out resulted in a five-match ban, and Geoff Huegill, whose contract with Swisse was not renewed after he was found with cocaine in public.

The key factor in each of these instances ultimately was the level of unfavourable media attention. If James Packer and David Gyngell were not media moguls when they engaged in a street fight earlier this year, their employers might not have been able to connect their employment to the misconduct — or even have known the conduct was performed. Instead, because of their high profile, their private scuffle quickly turned into public fodder and the two multimillionaires faced intense media scrutiny. It was said the incident potentially could have affected Packer’s ability to apply for or hold a casino licence.

Importantly, however, non-famous folk have also found that when private conduct becomes public knowledge, their employment could be jeopardised. Justine Sacco boarded a plane tweeting: “Going to Africa. Hope I don’t get AIDS. Just Kidding. I’m White.” Before she landed, the post had spread around the world, and she was dismissed from her role as a public relations executive. One also has to wonder whether Matt Lockley, who became instantly infamous after wreaking drunken havoc on a Virgin Blue plane, suffered career devastation.

It seems the curtain that once was suspended between an employee’s personal life and their employment is in many instances now merely a cobweb. Technological advances provide more ways for private conduct to slide into the awareness of employers. Once this happens, many employers will now move quickly to discipline employees if the conduct is deemed to be detrimental to the employer’s business.

Due to their high profiles, sporting and media personalities will be held to a higher standard, but the not-so-famous must also take care. Prudent employees should use privacy settings to restrict employer access and keep a low profile wherever possible. We must also continue to challenge employers and governments who test the boundaries by peering too far into private lives, and oppose overly intrusive measures that could stifle public debate and limit freedom of speech.

*Giri Sivaraman is a principal and Kate Luckman a solicitor with Maurice Blackburn Lawyers in the firm’s employment and industrial practice.

Peter Fray

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