As a result, employers need to be careful in finding breaches of their social media policies, Mr Byrnes said.

“Many social media policies are drafted without a full appreciation of how different social media platforms function in practice and the limits of an employer’s prerogative,” he explained.

“These limits are delineated by the right of an employer to give a ‘lawful and reasonable direction’. While an employer will have a capacity to fully control what is posted or tweeted from one of its official accounts, its capacity to limit what employees post or tweet from their own personal, non-work accounts is more limited.”

In addition, many social media policies overreach and don’t make this crucial distinction, he mused, and barring a few exceptions, an employer does not have “an unfettered right” to regulate posts or tweets from an employee’s personal, non-work account.

In Rose v Telstra Corporation [1998] AIRC 1592, the then Australian Industrial Relations Commission held that “…in certain circumstances, an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited…” to conduct that objectively might cause serious damage to an employer-employee relationship, damages the employer’s interests or is incompatible with the employee’s duties.

“In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee,” the commission said.

It’s not the role of the employer to play policeman, Mr Byrnes said, ensuring that their employees are always engaging in exemplary online behaviour.

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“For disciplinary action to be taken, the relevant conduct must have some nexus to the interests of the employer, for instance, by causing real harm to the employer’s reputation, standing, brand or workplace environment,” he said.

“While the Rose test was formulated before social media existed in its current (almost ubiquitous) form, it nevertheless provides a sound foundation for determining whether there is a proper legal basis for taking action.”

He provided some suggestions for law firms to effectively address the issue of offensive, or allegedly offensive, conduct on social media by employees using their personal, non-work accounts, starting with an examination of policies in their current form.

“Review your social media policy. Does it make a proper distinction between posts on official employer accounts as opposed to posts on personal employee accounts/ does it ask employees to consider the need to identify their employer on their personal account?” he posited.

Firms should not jump to conclusions or engage in “knee-jerk” reactions either, he said.

“Consider all of the circumstances of any scenario carefully. Investigate the matter properly. Take informed advice,” he argued.

Further, any disciplinary response should be proportionate, Mr Byrnes added.

“A ‘social media outrage’ of itself is highly unlikely to be considered a valid reason for termination by the Fair Work Commission if unfair dismissal proceedings are commenced. The conduct will need to be objectively serious and, consistent with Rose v Telstra Corporation, be damaging to the interests of the employer,” he advised.

“Ensure any disciplinary action against an employee does not constitute adverse action under the Fair Work Act or breach anti-discrimination laws.”