In a recent decision of Fair Work Australia (“FWA”), an employee who was terminated after grumbling about her employer on Facebook was successful in obtaining compensation for the unfairness of her dismissal. The case provides some useful lessons about the matters which should be taken into account when considering the employment consequences of social media use by employees.
The facts
An employee of a hairdressing salon in Melbourne took to Facebook to grumble when she was paid some of her holiday pay by cheque and some in cash, and about the size of her Christmas bonus. She posted a comment on her Facebook page that read: “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!” This posting was only visible to her Facebook “friends” - however, one of these “friends” told her employer about the post.
The employee was dismissed. In the letter of termination, “public display of dissatisfaction [with] employment – Facebook” was cited as a reason for the dismissal. Three other reasons for termination were also given, namely, unauthorised removal of property from the premises; punctuality; and, rescheduling of clients. However, none of these reasons were established to a level sufficient to justify the termination of the employment, and the case came down to the Facebook post.
Did the Facebook post provide a valid reason for the dismissal?
At the start of her decision, Commissioner Bissett noted that “postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble over a coffee or drinks with friends has turned into a posting on a website that may, in some cases, be seen by an unlimited number of people”.
It cannot be said that Commissioner Bissett was a fan of the employee’s conduct, which was described as “silly” and “a foolish outburst”. Indeed, Commissioner Bissett said that “it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences”.
However, Commissioner Bissett noted that the post did not name the salon, and considered that it was unlikely that the Facebook post would have any effect on the salon’s business (or on the hairdressing industry generally). Accordingly, even though the post might have affected the employer’s trust and confidence in the employee, it did not provide a valid reason for termination. The employee was awarded compensation of eight weeks’ pay.
Lessons for employers
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The principal lesson in this case is that a novel question (concerning use of Facebook) could be answered using existing principles concerning termination of employment – namely, does conduct outside of work have a sufficient connection with employment? In this case, the answer to that question was “no”. There will obviously be many cases in which the necessary connection will be established.
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Employers should consider employee conduct objectively – even though an employer (or a particular manager) may be personally upset or disappointed by an employee’s conduct, termination of employment will require the likelihood of some tangible effect on the employment.
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Employers should consider implementing social media policies so that both employers and employees understand the rights and expectations of the other party. These polices are especially important where employees use social media in the course of their employment – we have discussed these policies
HERE.
To understand how this decision impacts on your business or for employment advice generally, please contact:
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Leonard Lozina | Partner
P +61 2 8233 9617
F +61 2 8233 9555
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John Oakes | Partner
P +61 2 8233 9804
F +61 2 8233 9555
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Paul Almond | Special Counsel
P +61 2 8233 9735
F +61 2 8233 9555
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Maree Skinner | Special Counsel
P +61 2 8233 9803
F +61 2 8233 9555
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Angus Macinnis | Senior Associate
P +61 2 8233 9627
F +61 2 8233 9555
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