Tribunal finds no breach of privacy law by employer using Facebook to investigate misconduct claims

An employee has been unsuccessful in her claim her privacy was breached by her employer regarding information on her Facebook account.

The worker was employed by Transport Safety Victoria and got into a dispute on Facebook with one of her colleagues and Facebook “friend”.

The dispute culminated in the worker writing on her colleague’s Facebook wall that she was “snitching on people”, “too busy sucking up” and was “the kind of person who leaves your mates in the trenches after they have saved your ass.”

The colleague then reported this post to Facebook and to TSV, which then obtained screen shots of some of the Facebook posts.

TSV conducted an investigation and found the worker who made the posts had engaged in misconduct and gave her a final warning

She made a claim to the Victorian Civil and Administrative Tribunal on the basis that her personal and private information had been obtained by TSV in contravention of the Information Privacy Act and claimed the Facebook chats were ‘personal information’.

However, VCAT found while the information from Facebook was not publicly available information the collection of the screenshots was part of TSV’s investigation into misconduct.

VCAT found obtaining the information “did not involve illegally ‘hacking’ into [the worker’s] Facebook page” and that there was no breach of her privacy.

Anthony Massaro, employment lawyer at Russell Kennedy, told SmartCompany privacy law does not automatically shield an employee from a misconduct investigation, whether that is on Facebook or anywhere else.

“Generally if information is collected for an appropriate purpose in a lawful and reasonable manner then an employer can use that for that purpose without breaching privacy law,” he says.

Massaro says the tribunal accepted it was necessary for TSV to collect certain information from Facebook to investigate misconduct allegations.

“It was collected for that purpose and used for that purpose so there is no breach of the Information Privacy Act,” he says.

“Complications can arise when an employer obtains information for one purpose and wants to use it for another purpose or obtains it inadvertently.”

Massaro says if information becomes available about Facebook posts employers can look into it.

“What you can’t do is hack into someone’s Facebook account,” he says.

“That will be where you will be clearly collecting it unlawfully or in an improper manner.”

Janet Miller, spokesperson for Transport Safety Victoria, told SmartCompany there was an allegation of breach of privacy and TSV vigorously defended itself in VCAT.

SmartCompany was unable to contact the worker.

*This article was updated on February 1, 2018.