Can You Be Dismissed for Social Media Posts in Australia?

Can an employee face social media dismissal for something they post outside work? A recent Melbourne controversy brought that question into focus after a junior lawyer reportedly lost her job only weeks after beginning practice following a viral TikTok criticising the pressures of junior legal work. According to her account, her employer asked her to remove the video, she refused, and her employment was terminated shortly afterwards.

The incident prompted debate about free speech and employment in Australia. However, whether an employee can be dismissed for a social media post depends on more than whether an employer dislikes or disagrees with what was said. The nature of the post, its connection with the employment relationship, workplace policies, reputational consequences and the employer’s actual reason for dismissal may all be relevant. The Fair Work Act 2009 (Cth) may also provide protections where a dismissal is harsh, unjust or unreasonable, or occurs for certain prohibited reasons.

FWA Protections: Sections 385 and 772

Section 385 of the Fair Work Act 2009 (Cth) concerns whether a dismissal was “harsh, unjust or unreasonable”. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the High Court explained that a dismissal may be unjust because the alleged misconduct did not occur, unreasonable because the employer relied on conclusions not reasonably open on the evidence, or harsh because dismissal was disproportionate to the misconduct or its consequences.

Section 772 instead focuses on the reason for termination and prohibits dismissal for reasons including political opinion, race, sex, disability and religion. In Alam v National Australia Bank Ltd [2021] FCAFC 178, whose reasoning was applied to sections 772 and 783 in Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669 (Lattouf), the Full Court explained that liability arises where a prohibited reason is a “substantial and operative” reason for the dismissal. A dismissal may therefore be procedurally fair yet still contravene section 772.

When Social Media Dismissal Is—and Is Not—Upheld

In Rose v Telstra Corporation Ltd [1998] AIRC 1592 it was held that out of business hours conduct may justify dismissal where it is likely to seriously damage the employment relationship, damage the employer’s interests, or is incompatible with the employee’s duties.

In O’Keefe v Williams Muir’s Pty Ltd [2011] FWA 5311, an employee used Facebook to insult and threaten a co-worker over a pay dispute. Although he posted outside work hours and claimed maximum privacy settings, co-workers could see the post, and it quickly reached its target. The Commission found serious misconduct. The employer’s handbook expressly prohibited threats and offensive conduct, although the Commission considered the behaviour sufficiently serious even without a policy.

Likewise, in Little v Credit Corp Group Ltd [2013] FWC 9642, dismissal was upheld where an employee made derogatory public comments about an external organisation and a grossly offensive sexualised post about an incoming employee. The Commission considered the posts capable of damaging workplace relationships and the employer’s reputation. His knowledge of the Code of Conduct and prior training strengthened the employer’s case.

In Corry v ACTU [2022] FWC 288 (Corry), racist, homophobic and transphobic posts, together with material applauding violence against police, were found inconsistent with the ACTU’s policies and public positions and created reputational risk. The Commission emphasised that a social-media policy is not essential and that anonymity or limited initial distribution may carry little weight once posts become public.

By contrast, in Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444, dismissal was unfair where the employee believed his account was private, some offensive material was posted by others, there was no social-media policy, comparable employees were not disciplined, and he had lengthy satisfactory service.

Lattouf: Political Opinion Under Section 772

In Lattouf, the ABC removed Ms Lattouf from her remaining radio shifts after she reposted Human Rights Watch material concerning starvation in Gaza. Justice Rangiah held that her views concerning Palestinian human rights and media reporting of the conflict were “political opinions”, and that section 772 protects not merely holding, but also expressing, such opinions.

A key issue was whether she had breached a lawful and reasonable direction. The ABC argued she had been told to be careful about what she posted, but the Court found this was advice rather than a direction prohibiting further posts. The case therefore illustrates that reputational concerns, policies or expectations of impartiality do not displace the need to identify the employer’s actual reason for dismissal.

These cases suggest that disagreement with an employee’s political views is not enough to give rise to a dismissal, the critical question is whether dismissal responds to a genuine breach of employment obligations or to the protected political opinion itself.

Need Advice?

At Leo Lawyers, we understand that social media disputes can leave employees uncertain about where their private expression ends and their employment obligations begin. Employees may face disciplinary action or dismissal because of posts made outside work, sometimes without knowing whether the conduct was covered by a workplace policy or whether the employer was entitled to act on it. We assist employees to understand their rights, assess whether a dismissal was fair or unlawful, and protect their position where social media activity, workplace policies or protected political opinions are in issue.

Feel free to contact Damin Murdock at Leo Lawyers via our Website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, to our YouTube, LinkedIn, Facebook and Instagram, and kindly give us a favourable Google Review.

DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article and if you require specific legal advice, please contact us