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Abstract

As demonstrated by recent media reports concerning the Australian Public Service Social Media Policy and the Australian Rugby Union’s dispute with Israel Folau, social media often blurs the line between our professional and personal lives, and means that employers want to control what we do and say on social media. This is an issue which directly affects Australian teachers, whose professional obligations have always extended beyond their immediate work environments. Does social media mean that teachers are never ‘off the clock’? This article examines the current law relating to control of teacher behaviour and comment on social media. It analyses the implied freedom of political communication discussed in the 2019 High Court decision of Comcare v Banerji, and its ramifications for teachers and their employers. Additionally, using case studies involving social media policies of authorities which control teacher professional conduct, it considers whether such policies constitute lawful and reasonable directions, or whether they could be challenged as infringing teachers’ rights to a personal life.

Keywords

Social media teachers professional obligations legal rights legal responsibilities policy

Introduction

In February 2018 The Age reported that a teacher from Geelong Grammar was being investigated in relation to a post she made to a closed anti-vaccination Facebook group. The post appeared to support the group’s ‘anti-vax’ stance (Minister Slams, 2018). She had apparently indicated that she wanted her own children to share contact with other members of the group whose children had measles. This investigation occurred even though the Principal of Geelong Grammar had reassured parents that the school’s vaccination policy complied with Victorian government regulations, and that no children at the school were put at risk. It appeared to us that this teacher was being investigated for her participation in this group, and her expression of a willingness to expose her own children to the measles virus. In short, she was being investigated for her conduct on social media (SM) in her personal capacity. However, this conduct had called into question her ability to act as a professional.

An employer’s right to control employee behaviour on SM is currently a contested issue in Australia. Employers increasingly seek to control what employees do and say on SM, even when the employees are not at work and are using SM in a personal rather than a professional capacity. Evidence of the contemporary urgency of this issue includes media reports concerning the Australian Public Service Social Media Policy in 2017 (McIlroy, 2017), a new SM policy proposed for journalists (Meade, 2019), the Australian Rugby Union’s dispute with Israel Folau (ABC News, 2019; Mark, 2019) and the recent High Court decision in Comcare v Banerji (2019).

This article explores the extent to which authorities that employ teachers, or govern teacher conduct in Australia, seek to control teacher behaviour on SM, and in particular teachers’ personal use of SM, which we define as behaviour or comment on SM which does not occur while the teacher is at work and does not use the employer’s technology. Unlike in the USA, where this issue has received academic attention (Russo, 2011; Russo et al., 2010), this is an issue that has not been explored in Australia in the academic literature. Analysis of the Australian case law has tended not to draw any distinction between the different types of SM behaviour that employers seek to regulate.

In Part 1 of this paper, we explore current Australian case law and argue that it is possible to categorise teacher use of SM as follows: first, where the teacher denigrates their employer or makes complaints about their employment; second, where the teacher engages in inappropriate conduct towards those at their workplace; and third, where the teacher’s conduct on SM has no direct link to their employment, but may damage the employer’s reputation if the teacher’s connection to their employer is known, because the teacher’s SM profile identifies their employer. Employers have a valid interest in controlling behaviour in the first two categories of conduct, as it is directly linked to the professional obligations of teachers. However, it is more difficult for employers to demonstrate that they are entitled to control the third category of conduct, even though they commonly attempt to do so via published SM policies. The behaviour of the Geelong Grammar teacher falls into the third category. In Part 2 of this paper, we examine the lawfulness of purported control of this third category of conduct via SM policies relating to teachers and conclude that such purported control may be open to legal challenge. Part 3 of the paper analyses some current SM policies that apply to Australian teachers. Our analysis finds that authorities in Australia that employ teachers or govern teachers’ professional standards seek to tightly manage teacher behaviour on SM, even when teachers are not at work. However, these policies may be vulnerable to legal challenge, particularly where they blur the line between a teacher’s professional and personal life.

Part 1: Current Australian case law

In this part, we explore the categories of case law dealing with control of teacher behaviour on SM.

Most Australian cases dealing with an employer’s right to discipline an employee for personal use of SM have occurred in the Fair Work Commission (FWC) under the unfair dismissal provisions of the Fair Work Act 2009 (Cth). In determining whether a dismissal is unfair, one of the matters the FWC must consider is whether there was a valid reason for the dismissal. A valid reason has been defined as one that is ‘sound, defensible or well founded’ (Selvachandran v Peterson Plastics, 1995). In determining whether employee conduct on SM is a valid reason for dismissal, the FWC examines whether the conduct is incompatible with the employee’s obligations to their employer under their contract of employment.

In cases involving employee personal use of SM, the FWC has consistently referred to the case of Rose v Telstra (1998). Decided in 1998, in the pre-SM era, this case dealt with the right of Telstra to dismiss an employee who was involved in a fight with another Telstra employee while off duty in a pub in Tamworth, where both employees were staying overnight in order to do work for Telstra. The FWC found that Telstra did not have the right to dismiss the employee, reasserting accepted principles that employees are entitled to a personal life (Applicant v Respondent, 1998; McManus v Scott- Charlton, 1996), that the employer’s right to discipline an employee for out-of-hours conduct is limited, and that, in order for an employee’s out of hours behaviour to constitute a valid reason for dismissal, it must:

a) be likely to cause serious damage to the relationship between employer and employee; or b) damage the employer’s interests; or c) be incompatible with the employee’s duty as an employee. In essence the conduct complained of must be of such gravity or importance as to indicate a rejection…. of the employment contract by the employee. (Rose v Telstra, 1998, p. 12)

The Courts have observed that more is expected of public sector employees in terms of their out-of-hours behaviour, primarily because of the need to maintain public confidence in the professionalism of the government sector (Cooper v ATO, 2014; Corrective Services v Danwer, 2013).

It is possible to categorise the case law into three types of employee behaviour involving personal use of SM. In Category 1 cases, the employee denigrates the employer on SM. Initially, the FWC likened this type of behaviour on SM to ‘pub-grumbling’ or complaining to family and friends about work-related matters (Stutsel v Linfox, 2011). However, more recent cases have noted the public nature of these comments (Linfox v Stutsel, 2012). Employers must tolerate legitimate comment on SM concerning conditions in their industry generally (Klooger v Foodora, 2018; Re Broadmeadows Disability Services, 2011; Vosper v Solibrooke, 2016). However, all employees have a duty of fidelity and loyalty to their employers (Byrnes v Treloar, 1997) and employers can discipline employees for disparagement of management, their fellow employees or clients on SM, even where this occurs via the employee’s personal use of SM (Campbell v Qube Ports, 2017; Dover-Ray v Real Insurance, 2010; Little v Credit Corp, 2013). In Anders v The Hutchins School (2016), Mrs Anders disputed the school’s decision to remove her from a more senior academic position following her reporting to the school that she was suffering from depression. While still employed at the school, she made several posts on her Facebook wall referring to her difficulties with the school. Her profile did not identify that she worked for the school, and the school wasn’t named. The school terminated her employment, alleging consistent problems between Mrs Anders and other staff at the school. It did not rely on the Facebook posts as a reason for the dismissal. The FWC found that Mrs Anders had been unfairly dismissed. It also noted that the school had not relied on the Facebook posts as a reason for the dismissal. However, the FWC indicated that the school could have relied on these posts as a reason for the dismissal:

It is also clear on the evidence that there were at least two Facebook status posts that related to her dispute with The Hutchins School and whilst the school was not specifically identified, I accept that a number of staff who were Facebook friends of Mrs Anders would have understood the comments to be in relation to the industrial dispute at the workplace. This gave rise to the possibility of exposing the school to ridicule … . (Anders v The Hutchins School, 2016, para. [96])

The FWC refused Mrs Anders’ application for reinstatement to her former job, finding that the relationship of trust and confidence had broken down.

In Category 2 cases, the employee engages in inappropriate conduct on SM in relation to those with whom they work. The FWC is very clear that even where this conduct occurs via an employee’s personal use of SM, the employer is entitled to discipline them for it. This derives from the potential liability of the employer for the employee’s behaviour at common law and under work health and safety and anti-discrimination legislation (Ambrose v Moolarban Coal, 2014; Colwell v Sydney International Container Terminals, 2018; Natoli v Anglicare, 2018; Renton v Bendigo Health, 2017). Australian case law involving inappropriate teacher contact with students via personal use of SM falls into this category. This type of behaviour breaches teachers’ personal duty of care to students, as well as their obligations to their employer.

In Campbell v Dept. Education and Communities (2012), the Industrial Relations Commission of NSW supported the termination of an ESL teacher for inappropriate communication with 17- and 18-year-old students via a chat room. The Commission found that the messages were ‘not appropriate to pass between a school teacher and a student’ (Campbell v Dept. Education and Communities (2012), para. [94]), and that the teacher had breached the Code of Conduct – Appropriate use of electronic communication and social networking sites. Most decisions of regulatory authorities in Australia that concern the professional discipline of teachers for personal SM use fall into this category.¹

Category 3 cases, which we call ‘damage by association’ cases, are probably the most challenging for the law, and, to date in Australia, there is no decision that has directly addressed the issue of the extent of an employer’s right to control this type of behaviour. Law firms commonly advise employers that behaviour on SM that may damage an employer’s reputation can be controlled via a SM policy (Bland & Waterhouse, 2013; Byrnes, 2014; Kelly, 2017). Thornthwaite’s (2016) study of Australian SM policies found that almost every policy included a ‘restriction on SM conduct in employees’ private time’ (p. 343). Our study of SM policies relating to teachers found that all but one policy sought to control teachers’ personal use of SM. However, these policies may not protect employers if they blur the line between teachers’ professional obligations and their personal lives, as there may be avenues for teachers to challenge the legality of the policies in question.

Part 2: Lawfulness of control of Category 3 SM behaviour

In this part, we examine the lawfulness of purported control of this third category of conduct via SM policies relating to teachers and conclude that such purported control may be open to legal challenge

Freedom of speech and political communication

The ability to dissent, to argue and to comment on our institutional systems is what sets democratic societies apart from autocratic or fascist regimes. Freedom of speech and the curtailment of freedom of speech is therefore an important human right as recognised by the Universal Declaration of Human Rights.

However, Australian law has less protection for freedom of expression than the UK or the US (Corney, 2014). In the US specifically, there is a legal test to balance freedom of expression with public service employment given the free speech right protections in their system. Freedom of speech in Australia is not a Constitutional right. We have freedom of political communication, which is implied in our Constitution, but it is not absolute. This Constitutional right prevents Parliament making laws which unfairly restrict the implied freedom of political communication. The test is set out in the case of Lange v Australian Broadcasting Corporation (1997) which requires two limbs to be satisfied: whether a law burdens the freedom; and whether that burden is appropriate for a legitimate end, consistent with a representative and responsible government as mandated by the Constitution. As will be discussed in Part 3, this means that the types of communication that may be protected will vary, according to the nature of the employment. For teachers employed by private institutions, the implied right of political communication is not available as an argument to challenge their employer’s SM policies. For teachers employed by State Departments of Education, State government legislation and administrative action is subject to the implied freedom of political communication (Twomey, 2012). In determining whether a law unjustifiably burdens political communication, competing values of public health and safety are taken into account (Clubb v Edwards, 2019) and, as demonstrated in the recent High Court case of Comcare v Banerji (2019), the integrity of the public service and public confidence in the sector are also considered. In light of this most recent decision, the implied freedom does little to protect a public service employee from a stringent SM policy, and this has implications for Category 3 conduct on SM by teachers in the public sector.

In Comcare v Banerji, a public servant was dismissed after her employer, the Department of Immigration and Citizenship, discovered anonymous posts on Twitter that were critical of Australia’s refugee policy and was able to trace them back to the employee. The Department claimed that her posts breached the Australian Public Service (APS) Code of Conduct. Ms Banerji challenged the APS Code of Conduct, claiming that the Code infringed the implied freedom of political communication. The High Court found that even if a law significantly restricts the ability of people to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material and unjustified effect on political communication as a whole (Comcare v Banerji, 2019, para. [20]). They found that the APS Code of Conduct did not do so, as it was reasonably adapted to the purpose of securing the integrity of the APS (Comcare v Banerji, 2019, para. [36]). Ms Banerji claimed that, given her posts were anonymous, she had not damaged the integrity of the APS, as her comments would not reflect on the public service any more than an ordinary person’s would. However, the High Court rejected this argument:

Attempts to carve out some subset of “anonymous” political interventions or communications create an illusory category. It is illusory because it focuses on the instant at which the communication is made without regard to the fact that anonymity can and often eventually will be lost. (Comcare v Banerji, 2019, para. [160])

The impugned provisions of the APS Code of Conduct were found to be lawful under the two limbs in Lange v Australian Broadcasting Corporation (1997), discussed above. The Court found the first limb met, that political communication was materially burdened by the provisions. However, the second limb was not met, because the burden could be justified (Comcare v Banerji, 2019, para. [32]). The test used for the second limb in Lange was whether the provisions were suitable, necessary and adequate in their balance. The Court found that the integrity and good reputation of the APS was a significant purpose consistent with a representative and responsible government mandated by the Constitution. It was also found to be necessary, as there was no obvious and compelling alternative, and the range of procedures and penalties meant it was adequate in its balance. The Court found the provisions ‘trespasse(d) no further upon the implied freedom than is reasonably justified’ (Comcare v Banerji, 2019, para. [42]).

Justice Edelman stated that while the boundary between what is acceptable and unacceptable speech made by government employees on SM might be ‘ill-defined’, the test is whether such expression has an effect on the trust between the APS, Parliament, Government and the public (Comcare v Banerji, 2019, para. [182]). The Code of Conduct provided for mechanisms of review in disciplinary proceedings and was not a gross imbalance between the legitimate object of securing the integrity of the APS and the burden on political communication. For Justice Edelman, the implied freedom could not be used as a ‘trump’ card over other values, such as the importance of an apolitical public service in our Constitutional tradition (Comcare v Banerji, 2019, para. [165]). Given this decision, a similar claim by a teacher in the public sector is unlikely to be successful even in relation to Category 3 behaviour, given the importance of teachers in the community and the necessity that the public have faith in the teachers bringing up the next generation.

Human Rights Charters

In States such as Victoria, ACT and now Queensland, there are legislative Human Rights Charters (Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT); Human Rights Act 2019 (Qld)). It might be thought that these Charters would protect public sector teachers’ rights to free speech and expression on SM. However, these Charters only require Parliament to turn their minds to the effect legislation has on human rights via a ‘compatibility statement’. Such statements can justify when an Act intercepts or burdens a human right, such as the right of free speech on SM.

Privacy legislation

When it comes to the privacy of teachers on SM, there is little help from existing privacy laws in Australia. The Australian Information Privacy Principles under the Privacy Act 1988 (Cth) only apply to Commonwealth and ACT employers and private organisations with a turnover of $3 million. The Principles regulate the storage and dissemination of data, not the viewing of personal posts on SM. Many States have similar privacy laws. Jurecek v Director, Transport Safety Victoria (2016) found that SM posts may be personal information under the Act, but the privacy legislation does not extend to the result of viewing the posts. In Juracek, the employee was allegedly a victim of bullying in the workplace, which she discussed in chats and posts on Facebook with a work colleague. The fact she was a public sector employee meant the Information Privacy Act 2000 (Vic) applied to her. These posts (written under a pseudonym) were disclosed to the employer, who then accessed the employee’s Facebook account through someone she was linked with on Facebook. She was investigated and disciplined for her comments. The Victorian Supreme Court found that the privacy legislation prohibited organisations collecting personal information unless the information is necessary for one or more of its functions or activities. The Court found that SM posts may be ‘personal information’ under the Act. However, it also found that the collection of the personal information was ‘necessary’ as part of the misconduct investigation, and so the employer had not breached the legislation.

Workplace surveillance laws do not stop an employer tracing an employee’s SM presence. In Australia, there is no common law privacy tort such as that in the US and while employers can’t intercept phone calls under the Telecommunications (Interception and Access) Act 1979 (Cth), this does not apply to emails. Similarly, the Surveillance Devices Act 2007 (NSW) prohibits the installation, use or maintaining or causing a listening device to record, monitor or listen to a private conversation or to visually record or observe the activity, but does not prevent an employer accessing information on an employee’s SM profile. The terms and conditions of Facebook and Twitter may be infringed by logging on to another account or opening an anonymous account and connecting to employees on false pretenses, but this is a private company policy with little in the way of enforcement.

General Protections (GP) provisions – Fair Work Act

An avenue which may be available to teachers who are disciplined for Category 3 conduct that involves political or religious comment is that the discipline is a breach by their employer of anti-discrimination legislation and/or the GP provisions of the Fair Work Act (Brown & Dent, 2017). Discrimination in employment based on religion or political opinion is not prohibited under Commonwealth anti-discrimination legislation. In addition, not all States and Territories have protection against employment discrimination based on political opinion or religion (Stewart, 2018, p. 319). We have therefore limited our discussion to the GP provisions of the Fair Work Act, which have broader application to Australian employees. In addition, employees who are not covered by the GP provisions are protected by similar provisions relating to unlawful termination of employment (Fair Work Act, s. 772; McIntyre v SBS, 2015).

Under the GP provisions, an employer cannot take adverse action against an employee for certain discriminatory ‘prohibited reasons’, including the employee’s political opinion or religion (Fair Work Act, s. 351). Since their introduction in 2009, the GP provisions have become a popular remedy for employees, because they contain an extensive range of outcomes (Fair Work Act, s. 545), and place the onus on the employer to prove that the employee was not dismissed for a prohibited reason (Fair Work Act, ss. 360, 361).

However, the GP provisions do not provide protection for teachers in religious schools who post material on SM that does not conform to the tenets of the school. There is an exemption for religious institutions which would allow a religious school to take adverse action against a teacher engaged in Category 3 conduct on SM, provided that the adverse action was taken in good faith and to avoid injury to the religious susceptibilities of adherents to that religion (Fair Work Act, s. 351(2)(c)).

In addition, in defending a GP claim, an employer may establish its subjective reasons for taking the adverse action against the employee, in order to prove that the action was not taken for a prohibited reason (Bendigo TAFE v Barclay, 2012). This would mean that if a teacher was dismissed for expressing religious or political views on SM, their employer may be able to argue that the subjective reason for the dismissal was the teacher’s breach of its SM policy, and therefore the teacher’s professional obligations. This is more likely to be the case if the teacher expresses their views in a provocative or offensive manner. In CFMEU v BHP Coal Pty Limited (2014), an employee was dismissed for waving an offensive sign at other workers who crossed a picket line during an industrial dispute. The employee claimed that he had been dismissed for a prohibited reason: participation in a lawful picket. However, BHP successfully argued the employee was dismissed for the expression on the sign, which contravened workplace policies requiring workers be respectful and courteous towards each other. The High Court held that it was possible to distinguish between engagement in the lawful activity (the picket) and manner of its expression (the offensive sign) (CFMEU v BHP Coal Pty Limited, pp. 252, 268). It may therefore be possible for a school that disciplines a teacher for expressing certain religious or political views on SM to argue that the teacher was not disciplined for holding those views, but because of the way in which they were expressed. This would apply regardless of whether the teacher was employed by a religious school or not.

Contractual status of SM policies

An employer’s SM policy may be part of the teacher’s contract of employment, because it has been expressly included in the contract. However, the situations where this occurs are rare. In addition, after a number of decisions that found that workplace policies were binding on employers, it became common for employers to include a provision in their written policies that they did not form part of the contract of employment (Bruce, 2013; Feldman, 2015; Longwill and Willoughby, 2015). Where a SM policy contains such a provision, it will not form part of the contract of employment (Barker v Commonwealth Bank, 2012; Yousif v Commonwealth Bank of Australia, 2010).

However, even if a SM policy is not an express part of a teacher’s contract, the teacher will still be obliged to observe it, provided the policy is a lawful and reasonable direction. All employees have an implied contractual obligation to obey lawful and reasonable directions (Adami v Maison De Luxe, 1924) and employers can issue directions via published workplace policies (Potter v WorkCover, 2004).

In relation to SM policies concerning Category 3 conduct, the issue is whether these policies are lawful and reasonable directions, given that they seek to control out-of-hours behaviour. In King v Catholic Education Office (2014), the FWC considered the lawfulness of a direction to a teacher concerning the out-of-hours private transport for students to sporting events which were not school related. The FWC stated that ‘(t)he circumstances in which an employer may make lawful directions in respect of the off-work activities of employees will….usually be very limited’ (King v CEO, p. 262) and that, what is required is a ‘significant connection with or effect upon the employee’s employment in order for an employer’s direction concerning the out-of-hours activity and conduct of an employee to fall within the scope of the employment and thus be lawful’ (King v CEO, p. 263). The FWC held that the direction forbidding the teacher providing transport to students was lawful and reasonable because of issues related to the vicarious liability of the school, and potential damage to the school’s reputation in the context of its former involvement in allegations of sexual abuse of students.

It might be argued that a SM policy which seeks to control Category 3 teacher conduct is a lawful and reasonable direction, because it protects the reputation of the school by requiring teachers to maintain professional standards at all times. However, this assumes that teachers have an obligation to protect the reputation of their school, even when they are ‘off the clock’. If teachers do not have an obligation to do this, then such policies may be vulnerable to legal challenge because they do not constitute lawful and reasonable directions, and venture too far into a teacher’s personal domain.

Part 3: Analysis of SM policies relating to teachers

In this part, we analyse some current SM policies that apply to Australian teachers.

We conducted documentary analysis of publicly available information (on the internet) of SM policies related to Australian teachers. We examined the policies of 19 organisations or bodies. These included State government education departments,² Catholic School peak bodies,³ bodies responsible for the registration of teachers⁴ and several independent schools.

All but two of the policies examined contain provisions relating to teachers’ personal use of SM. However, the policies vary in terms of the extent of delineation between professional and personal use of SM, the types of behaviour the policies sought to control, and whether the policy could be used for disciplinary purposes or not. Examples are set out in Appendix 1 to this paper.

Delineation between work and personal use of SM

In some policies, there is no attempt to distinguish between personal and professional use of SM. Such policies were associated with independent religious schools and appear to be tied to the teachers’ position within the broader school community. Other policies acknowledge a division between personal and professional use of SM, but require teachers to maintain professional standards in relation to personal use of SM.

It is questionable whether these policies constitute lawful and reasonable directions, at least when they relate to Category 3 conduct. These policies would prevent a teacher in the position of the Geelong Grammar teacher participating in the ‘anti-vax’ SM group. The linking of teachers’ personal use of SM to their professional obligations could perhaps be justified on the basis that many Codes of Conduct relating to teachers’ general professional obligations require teachers to be role models in their communities (for example, Sydney Catholic Schools, 2018, cl. 4.1). However, it appears that insufficient thought has been given to what this requirement means in an era of SM: what is ‘the community’? How far does the teacher’s obligation to be a role model in the community extend, now that so many of us conduct our personal lives in such a public way on SM? These issues require far more nuanced consideration than appears in some SM policies.

It is also questionable whether these policies satisfy the test in King v CEO, discussed in Part 2. It may be very difficult for employers to demonstrate that there is a significant connection between the employer’s SM policy and the teacher’s professional obligations under their employment contract, particularly in Category 3 cases.

The SM policies of the State government authorities tend to draw a much clearer distinction between SM for personal use and SM for professional use. However, these policies still seek to regulate teachers’ personal use of SM, and this would appear to extend to Category 3 behaviour.

Types of behaviour regulated

In relation to the breadth of the policies as they relate to use of SM, this also varies. Several policies contain a general requirement that teachers’ personal use of SM not harm the reputation of the school. This is a very broad edict, as the ‘reputation of the school’ is a nebulous concept. Does it mean, for example, that teachers’ comments on SM must align with the views of the institution on religious, social and political issues? If it does, then what happens if the relevant institution’s position on such issues changes? In Comcare v Banerji, Justice Edelman observed that one of the relevant factors in determining whether a public servant’s comments would breach the APS Code of Conduct was ‘whether the comment concerns matters for which the person has direct duties or responsibilities, and how the comment might impact upon those duties or responsibilities’ (Comcare v Banerji, 2019, para. [183]). This meant that there were many matters on which even senior public servants could comment. For example, public comment by a Health Department official about the Defence Department may not infringe the Code, but comment by that same official about the Department of Health would do so (Comcare v Banerji, 2019, para. [197]). By analogy, while comments on SM by teachers about education matters may damage the reputation of the school, it is harder to make the same argument about SM comments on other social and political issues.

Other SM policies are more limited in terms of the types of behaviours they expect from their teachers when using SM. For example, several policies require teachers to ensure that they have appropriate privacy settings on their personal SM accounts. Others contain guidelines reminding teachers to be aware of what they ‘like’ or ‘share’ on SM. Some proscribe different rules for teacher behaviour and teacher comment on SM. For example, one policy recommended that teachers not post photos that might compromise the teacher’s reputation. However, in relation to comments of a political nature, the same policy only required that teachers not post such comments using their work network or computer. Some of the public sector policies simply require a disclaimer by the teacher, so that the public is aware that the views being expressed on SM are not the views of the relevant Department of Education.

Somewhat concerning are the policies that require teachers not only to regulate their own use of SM, but to also control the behaviour of friends and family. Others require teachers to report negative comment on SM about their school. It is unlikely that either of these policies would constitute a lawful and reasonable direction. The requirement to control what others post is too wide to be considered a lawful and reasonable direction. In relation to the ‘reporting’ requirements, teachers do not owe a fiduciary duty to their schools to report, and their contractual duty of fidelity and loyalty is unlikely to extend to reporting such matters to the school (Sybron v Rochem, 1984).

Consequences of breach

Most of the policies stipulated that breach of the policy could result in disciplinary action against the teacher.⁵ This is concerning given the breadth of these policies. Given the extent to which some policies blur the line between teachers’ professional obligations and their personal lives, and that they often hold teachers to very high standards of behaviour on SM, the fact that they can then be used to discipline teachers is tantamount to a requirement that teachers act as brand ambassadors for their institutions, even when they are not acting in their professional capacity.

Conclusion

Teachers’ professional obligations have always extended beyond their immediate work environment. However, how far those obligations extend has become a contested issue in the age of SM and this demonstrates a real need for the law to draw a line between teachers’ professional obligations and their personal lives. Teachers engaging in Category 3 behaviour on SM are unlikely to find protection from current Australian laws concerning privacy and freedom of speech. If they are making political statements, they may find some solace from the comments of Justice Edelman in Comcare v Banerji (2019). They may also find limited protection in the GP provisions of the Fair Work Act, although this is not certain. However, and most significantly for authorities that employ or regulate the behaviour of teachers, it is likely that the ‘anti-vax’ teacher at Geelong Grammar could challenge a SM policy that sought to control her behaviour on SM, on the grounds that it is not a lawful and reasonable direction. It is quite difficult to demonstrate that there is a significant connection between the policy and the teacher’s employment. Policies that make no attempt to distinguish between personal and professional use of SM, that enforce the same standards for personal and professional use, or that require teachers to not only control their own behaviour on SM, but the behaviour of others, are particularly vulnerable to legal challenge. On the other hand, policies that attempt to strike a balance between an employee’s well-recognised right to a personal life, and the employer’s interests, for example by recommending privacy settings or requiring disclaimers, are more likely to withstand scrutiny.

Footnotes

Acknowledgements

The authors would like to thank Andrea Usnik for her assistance with the research for this article.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

ORCID iDs

Sandra Noakes

Sarah Hook

Appendix 1. Social media policies relating to teachers – examples

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The blurred line between the professional and the personal: Regulation of teacher behaviour on social media