Assume that you have a long serving full time employee who is off work and receiving worker’s compensation. The worker’s contract of employment provides that the employee was to refrain from posting on social media inappropriate material including material intended to cause or that could possibly cause insult, offense or humiliation to the company or is defamatory and could adversely affect the image, reputation, viability or profitability of the company. Also assume that during the period that the worker was on worker’s compensation the employee posted the following:
“I use (sic) to love my job at Alarmnet Monitoring. I use (sic) to love that we were owned by a family… then along came three Victorians who bought the company from the family… these three Victorians came over and changed everything. They have more money and think they have more power coz (sic) they are from Melbourne. Shame on you. We use (sic) to be so proud of the service we gave our customers… they don’t care for clients, they don’t care for their staff… really, really sad.”
You might reasonably think that this was as clear a breach of the company’s social media policy as possible and that it would give rise to a right to terminate.
After meeting with the employee that is what Alarmnet did. The employee approached the Fair Work Commission (FWC) to appeal against her dismissal and allege that she had been unfairly dismissed.
The FWC found that the Facebook post was a valid reason for her dismissal on the basis that it breached her contract of employment and the social media policy. The FWC also concluded that the worker had been given procedural fairness because she was given the opportunity to respond before the termination took effect.
Despite this the FWC found that she was unfairly dismissed. The FWC said that the dismissal was not proportionate to her online misbehaviour. They reached this conclusion by giving weight to the fact that the employee:
- Had accumulated almost 15 years of service;
- Was not the subject of any formal disciplinary action before she made the Facebook post; and
- Had a medical condition which contributed to explaining her decision to make the Facebook post.
What does this mean for my business?
It means that having a valid reason to dismiss an employee and making sure you give the employee procedural fairness doesn’t necessarily protect you from a successful unfair dismissal case. If you are considering terminating an employee from online misbehaviour make sure that you have a valid reason, that you offer procedural fairness and that you consider such factors as associated medical conditions and whether the decision to terminate is proportionate to the misconduct in question.
For any advice about employment and business issues please contact please contact WMD Law on (02) 9525 8688 or at wmd@wmdlaw.com.au for more information and assistance.
Greg Dickson
B.Juris. LL.M.
CEO & Accredited Specialist in Family / De Facto Law
Telephone: 9525 8688
Facsimile: 9526 2608
Email: greg@wmdlaw.com.au
