Does social media expose you to unfair dismissal claims?

 In Social Media

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Dismissing an employee is always a difficult decision that requires careful management and adherence to the relevant employment instruments including the Fair Work Act 2009 (Cth). Failure to adhere to this can result in the dismissed employee lodging an unfair dismissal claim with the Fair Work Commission. In the quarter ended 31 March 2016 the Fair Work Commission received 3,578 of these claims.

The following is a summary of two recent decisions handed down by the Fair Work Commission regarding unfair dismissal claims relating to social media posts.

Starr v Department of Human Services
In this case an employee was dismissed for breaching the employer’s robust social media policies. The employee, in his own time, using his own computer and a pseudo name, posted a series of online comments on the “whirlpool forum”. In comments, the employee made it known that he was employed by the Department of Human Services. It was accepted by both parties that the online posts:

  • Encouraged members of the public to complain to their local MPs about the service levels of the department;
  • Contained derogatory comments about managers and customers; and
  • Disclosed non-publically available information.

The Fair Work Commission found that although there were valid reasons for the employee’s dismissal, the dismissal was harsh and thus unfair. The Fair Work Commission held that the penalty of dismissal was disproportionate to the gravity of the employee’s misconduct.

The Fair Work Commission commented that the misconduct, ‘bore no relationship to the actual work performance, caused no actual detriment to the Department, was situational in nature and engaged in impulsively rather than with deliberation, and consisted of a small number of widely interspersed comments over a period of years’.

The Fair Work Commission found that the length and quality of the employee’s employment, as well as the employee’s remorse ‘strongly indicated that his conduct would not be repeated, making the ultimate sanction of dismissal unnecessary’.

The Fair Work Commission made an order for the reinstatement of the employee.

O’Keefe v Williams Muir’s Pty Limited
In this case the employer did not have any social media policies. The employee was nevertheless dismissed for serious misconduct as a result of a status posted on the employee’s personal Facebook page, at home, outside of work hours, regarding the employer and a manager. The post said “wonders how the f**k work can be so f*****g useless and mess up my pay again. C***s are going down tomorrow.”

The employee argued that he was unfairly dismissed because he did not directly name his employer and he was Facebook friends with only 11 out of the 90 people employed at the workplace.

The employer successfully argued that the dismissal was fair and reasonable as the Facebook post constituted sexual harassment, workplace bullying and inappropriate communication between staff. The Fair Work Commission held that the post represented a direct threat against another employee, stating ‘common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred’.

The Fair Work Commission dismissed the employee’s application.

Implications
The main implications of these social media and unfair dismissal decisions are:

  1. An employer is not precluded from dismissing an employee simply because the employee did not directly name the employer in online posts;
  2. The Fair Work Commission generally take an ambivalent approach as to whether the posts were made during work or home hours. Further, the ownership of the technology used to make the post is generally irrelevant;
  3. Historically, employees have sought to rely on the defence that their social media account privacy settings, or the use of pseudo names, prevented certain people (whether it be their employer or co-workers) from viewing or identifying their posts. Generally (not always) this is viewed by the Fair Work Commission as a somewhat weak, if not irrelevant, defence; and
  4. As with all unfair dismissal claims, the Fair Work Commission will assess whether the dismissal was harsh, unjust and/or unreasonable with regard to the gravity of the conduct and the surrounding facts and issues.

Conclusion
Not all cases are as clear cut as the O’Keefe decision provided above and sometimes the offending conduct is questionable as to whether it does constitute a breach of the employee’s employment contract or satisfy the criteria for serious misconduct. As far as social media is concerned, it is always best practice for a company to have a social media policy in place if it decides it wants to terminate an employee for damaging the company’s reputation in a social media post.

The policy should clarify how social media can be used by employees, how the policy applies both in and out of working time, and clearly explain what is and isn’t appropriate use of social media. Ramifications for breach of the policy should be detailed. As with all policies, training and awareness by staff of the existence of the policy, and applying it uniformly are imperative.

To avoid the potential incurrence of costs and associated business interruption that can result defending an unfair dismissal claim, it is always prudent to obtain legal advice prior to dismissing an employee. Although the social media posts may be offensive, as they were in the Starr case, legally, the conduct may not be sufficient to justify termination.

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