Dismissal for out-of-hours conduct —  Facebook postings

Analysis

Dismissal for out-of-hours conduct — Facebook postings

Fair Work Australia recently ruled that a worker was rightly dismissed over abusive comments posted outside of hours on Facebook about work, with Deputy President Deidre Swan indicating that ‘the separation between home and work is now less pronounced than it used to be’. A prominent law firm has considered the wider implications of the case.

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Fair Work Australia recently ruled that a worker was rightly dismissed over abusive comments posted outside of hours on Facebook about work, with Deputy President Deidre Swan indicating that ‘the separation between home and work is now less pronounced than it used to be’. A prominent law firm has considered the wider implications of the case.
 
 
A recent article (written by Kate Jenkins, partner, Sara Summerbell, solicitor and Aimee Chadzynski, Melbourne graduate from Freehills) looks at the impact of social networking on the ability of employers to terminate an employee for out-of-hours conduct. Part of the article is reproduced below.
 
Termination permitted in limited circumstances
 
‘With the reduced separation between home and work, employers appear to be facing an increasingly difficult task of monitoring employee conduct, both at work, and outside of work via social networking sites such as Facebook.
 
Unfair dismissal case law demonstrates that employers can terminate an employee for out of hours conduct in limited circumstances where the conduct:
  • Undertaken by the employee, viewed objectively, is likely to cause serious damage to the relationship between the employee and employer
  • Damages the employer’s interests, or
  • Is incompatible with the employee’s duties as employee [See: Rose v Telstra [1998] AIRC Q9292].’  
‘For dismissals to be lawful, they need to demonstrate a sufficient nexus between the conduct and the employment relationship.
 
Case studies — successful unfair dismissal claims
 
Examples of successful unfair dismissal claims relating to alleged misconduct on social networking sites include:
  • ‘Silly’ comments posted on Facebook about a Christmas bonus were not detrimental to the business, the employer did not raise concerns with the employee at the time and the employer was not named in the post or on the employee’s Facebook page [See: Sally Ann Fitzgerald v Diana Smith T/A Escape Hair Design [2010] FWA 7358]
  • A Facebook post that did not reveal to whom it was directed and had no specific reference to the employee’s employment [See: Lukazsewski v Capones Pizzeria Kyneton [2009] AIRC 280], and
  • A photograph was taken by a former employee and posted on Facebook which depicted the applicant in a ‘cardboard car’ made from work materials, behind a service counter. The employer did not demonstrate any damage to the business and notably, the applicant did not post the photograph on Facebook [See: Ms Lee Mayberry v Kijani Investments Pty Ltd ATF The Dawe Investments Trust Subway Wallsend T/A Subway [2011] FWA 3496].’  
Advice for employers
 
‘In light of such decisions, when managing alleged employee misconduct, employers should:
  • Act on issues promptly when they occur
  • Beware of forming a view about allegations prior to the conclusion of any investigation
  • Consider whether the requisite connection or nexus between the conduct and the workplace/employment relationship is established before taking any disciplinary action
  • Take into account the surrounding circumstances, including the employee’s length of service, previous performance or disciplinary issues, reasons given, and whether there was a clear policy in place at the time of the incident, and
  • Beware of making a decision to terminate an employee before all relevant information has been gathered and considered.’   
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