Dismissal for sending offensive Instagram message not unfair

Originally published in Aug 2019 and updated May 2022

An employee’s unfair dismissal claim for sending offensive messages to a young nurse on Instagram has been dismissed by The Fair Work Commission.

The case reminds doctors to carefully consider what is posted on social media. Ask yourself before messaging or posting – is this something you would want in a news headline?

Employee’s claims considered

The complaint originated after a graduate nurse told her manager the 47-year-old employee had sent her an offensive message on Instagram. The hospital dismissed the employee for serious misconduct for breaching their harassment and discrimination policy. The Fair Work Commission found he sent a “highly offensive and unwelcome message of a sexual nature” to the nurse, while he was drinking at the pub.

The employee argued the message was at “the lower end of the spectrum of sexual harassment,” that it was private and sent outside of work hours. He also claimed the nurse did not object to the message and, as they did not work together directly, it did not impact their working relationship.

In considering his claims, the commission said it was wrong to minimise the nature of the “highly offensive” message he sent. It was also accepted the nurse did not encourage the employee and “… responded in a way that was designed to downplay the message and to curtail any further communication.”

While the commission found the message was sent outside of office hours, it accepted that the employee and nurse worked in the same building. The nurse was also expecting to be transferred back into a role where she would occasionally be working in close proximity with him, and this put her in an “extremely stressful position.”

The decision

In reaching its decision, the commission found the employee had received training on the hospital’s sexual harassment policy.

In the commission’s view, that he was drinking when he sent the message did not diminish his responsibility for his actions.

The age imbalance between him and the nurse, his failure to keep another allegation concerning inappropriate conduct confidential, the specialised nature of his job, his length of service, his contrition and his anxiety disorder, were all factors that were considered by the commission, but they did not cause it to change his employer’s decision to dismiss him.

The commission found the employee’s conduct breached the hospital’s harassment and discrimination policy, and his sexual harassment of the nurse was a valid reason for his dismissal on the grounds of serious misconduct.

The commission concluded his dismissal was not “harsh, unjust or unreasonable” and his application was dismissed.

What are your obligations?

While this appears to be a clear case of misconduct, it’s important to consider how messages you send on social media might be judged. Even those you think are private, could impact your professional reputation or employment if seen by a potential employer, patient or colleague.

As a doctor, you are required to meet the standards of professional behaviour outlined in the Medical Board of Australia - Good medical practice: a code of conduct for doctors in Australia. The social media guidance released by Ahpra and the National Boards, confirms the professional obligations in the Code of Conduct apply when using social media.

Many hospitals and practices have policies in place regarding the use of social media. It’s important you familiarise yourself with these policies and abide by them.

Generally, they prohibit using social media in a way that would breach a law – for example, laws governing discrimination and harassment, privacy, defamation, confidentiality, intellectual property, competition and consumer rights – or those laws that would bring your employer into disrepute. It may also prevent you from commenting on workplace matters.

Your social media profile will often connect your professional and private personas, so your private actions on social media may very well reflect on your public persona. Consider who you share information with on social channels and who you connect with. Avoid accepting requests from patients and always be mindful of your professional boundaries when being followed by a patient or the general public.

Key tips

• Be aware your professional, legal and employment obligations when using social media.
• Understand the privacy settings of all your social media accounts and review these regularly.
• Don't publish on social media something you would not want to see in a media headline.
• Help your colleagues make good decisions about posting.
• It’s best to post or message when you have a clear head.
• If in doubt, don’t message or post it.

More information

Download our factsheet: Social media for doctors - keeping it professional.

View Ahpra’s Social media: How to meet your obligations under the National Law.

Listen to our podcast: Reaping the rewards of social media: insights from Dr Rebecca Szabo.