'The Cultural, Economic and Technical Milieu of Social Media Misconduct Dismissals in Australia and South Africa' by René Cornish and Kieran Tranter in (2020) 36(2) Law in Context A Socio-legal Journal 1-32 comments
The intersection between social media activity and employment is an emerging global issue. This article examines the cultural, economic and technical milieu that has generated contested social media misconduct dismissals in Australia and South Africa. Through an analysis of 42 Australian and 97 South African decisions, it is argued that the ubiquitous, enduring and open nature of social media affects employment quite differently depending on country specific factors. In Australia, the absence of entrenched political rights has meant that employee social media use is not subject to reasonable expectations of privacy. However, there is also tolerance for a certain level of larrikin behaviour. In South Africa, the existence of enshrined rights manifests differently in the context of social media dismissal. Within a culturally diverse population with deeply fractured race relations, the decisions reveal a White minority still perpetuating dominance over a historically disadvantaged Black workforce.
The authors state
Australian decision- makers have over the 2010s vacillated concerning allowances towards employees and their social media conduct. While there was a clear trajectory of this swinging towards employers since 2015, a factor that was evident in the sample that might explain some of the vacillation, was a degree of tolerance for “larrikin” behaviour. 17% of decisions (7/42) involved claims or allowances made for larrikin conduct. The term “larrikin” has British roots referring to “a mischievous or frolicsome youth.” In Australia the original pejorative denotation moved somewhat: a larrikin is a person who is “a rough diamond,” or “cheeky prankster” (Bellanta 2013, p. 1) with a “lovable-scallywag air” (Bellanta 2013, p. 3) and “waggish humour” (Bellanta 2012, p. 180) who engages in “taking the mickey” of someone or something (Bellanta 2013, p. 1).
“Waggish humour” was evident in Mayberry. The misconduct involved the posting to Facebook a photograph of the employee clothed as a motor vehicle made from Subway branded materials behind a Subway counter. Subway summarily dismissed the employee for irreparable damage to the employers reputation. The FWA found that dismissal, let alone summary dismissal, was too harsh a sanction, as there was “no damage to the company’s name, let alone irreparable damage” to its reputation.
“Nonconformity, anti-authoritarianism, exceeding limits, audacity” (Vine 2009, p. 106) and apparent “careless disregard for social or political conventions” are further characteristics associated with Australian larrikinism. In Singh, an airline employee was dismissed for posting “We all support ISIS” on an Islamic extremist group’s Facebook page. The employee argued that the post was sarcastic, and that he really did not support ISIS. The FWC found that the company had failed to read the entire Facebook post that would have lead them to the conclusion that the employee was not an ISIS supporter. Although the FWC found that the post did not demonstrate “sarcasm” as “[i]t was not witty. It was not funny” but was “a ridiculous” and “incredibly stupid” post, it still held the dismissal unfair.
A common characteristic of Australian larrikinism is “strident masculinity” (Pearl 1958, p. 8). In Renton, an employee tagged two of his work colleagues on a sexually explicit video with a statement naming them in the video and left blobs of white Sorbolene cream on his male colleague’s desk. The employee's defence was he was “playing an annoying practical joke,” and that this “banter” was merely to generate humour done with “the intention of them having a laugh.” While the FWC found his actions to be “boorish,” "crass and careless" and demonstrating a serious lack of sound judgement, it held the termination to be “harsh in that it was disproportionate to the gravity of the misconduct.” The sharing of a sexually explicit video that also involved body-shaming the woman with colleagues that the employee had named, following up with the “practical” joke of the Sorbolene cream, was inappropriate but not a dismissible offence. This seems to reflect an Australian acceptance of a misogynist larrikinism that objectifies and fails to see harms towards women (Manne 2017; Tomsen 2017).
However, there does seem to be a line in Australia where tolerable larrikin social media conduct tips to dismissible misconduct. It seems to involve the sexualising of male bodies. In Little, the FWC found the dismissal lawful where a male employee made comments about sexual assault towards another male employee. The employee’s arguments that the comments were humorous and were meant as a joke were not shared by the FWC that found the comments to be acutely offensive. The contrast with Renton seems stark - where images and text about a woman’s body was not grounds for dismissal. In Fussell, the FWC held that the forwarding by a male employee of an image of his erect penis to a female colleague was at the “extreme outer limit of offensiveness,” and the reason for dismissal was valid. In the sample the limit to tolerable larrikin behaviour seems to be the sexualised male body.
It also seems to be the male body in danger. In Naresh, an employee was dismissed for posting a “cool as hell” image of himself standing on top of a mining machine, 1.6 metres above the ground with its engine running. The FWC upheld the dismissal partly as the image was evidence of unsafe work practices, but particularly as evidence of the brazen disregard for workplace health and safety and the serious risk to the employer’s reputation and profitability if seen by its clients.
The sample shows that while larrikin conduct through social media is tolerated to a degree in Australia; there are limits, seemingly around the representing of the male body. Indeed, in the Australian sample, in 4/42 decisions the employee had explained their social media conduct using the term ‘joke.’ In South Africa, ‘joke’ was only used by an employee as an explanation in a single decision. While not all Australians who argued that their social media misconduct should be understood and excused as larrikin carrying-on were successful, 72% (5/7) cases were. This finding coalescences with the broader finding emerging from comparing the samples, that the balance in Australian workplaces and employment law is slightly more towards employees. However, this comes with a caveat that this only extends to employees manifesting Australian hegemonic masculine values of “taking the piss” and misogyny (Bellanta 2012, p. 180).