Dismissal for Facebook post too harsh, says FWC

Cases

Dismissal for Facebook post too harsh, says FWC

Dismissing a long-standing employee for one critical Facebook post was too harsh, a tribunal has ruled. At the time the employee was on workers comp for a psychological injury.

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An employee accused her employer on Facebook of being uncaring about employees, but the Fair Work Commission found that dismissing her for it was too harsh.

The employer had a valid reason for dismissal, but the employee was on workers compensation with a psychological injury at the time, and the FWC found that the employer had taken insufficient account of that, her length of service and previous record.

Unblemished record


The employee had worked for a security company for almost 15 years and had an otherwise unblemished record. The company was taken over and the employee used Facebook to express her disapproval of the directors of the new owner. She accused them of not caring about either clients or employees and said her job was “thankless”. She believed that the directors had not provided adequate support to employees after the recent death of a co-worker. The post implied that the directors did not care because they were from interstate and the business was no longer “family-run”.
 
At the time of posting the comments, she was on workers compensation for a psychological injury attributed to the conduct of management at the company. 

The employer claimed that she had breached its social media use policy and shown no remorse for what she did. It had taken her injury into account, but concluded that summary dismissal was justified.

This was because:
  • Her post attacked the company, its directors and the services it provided.
  • She sent an email claiming she would “hash it out” with the co-worker who alerted the directors to her comments, with whom she did not get on. She claimed that the post was otherwise private and only circulated to friends because of her privacy settings.
  • After dismissal, she sent “a large number of harassing and intimidating emails” to management and employees.
The employee claimed that her comments had not adversely affected her employer and she was dismissed because of her workers compensation claim.

Decision


The FWC found that misconduct, not the workers compensation claim, was the reason for dismissal, and it was a valid reason. However, dismissal was too harsh for the following reasons:
  • The employer took insufficient account of her medical condition – which also influenced her actions after dismissal.
  • The post was a single event and did not damage the employer, although it caused some disharmony within the workplace.
  • Her length of service and previous record.
However, the FWC declined to award reinstatement or compensation because it concluded that the employee’s medical condition and her misconduct meant that she would not have continued to work for the employer. The employee had said that she had no intention of returning to work. Her workers compensation payments were sufficient to maintain her income.

The bottom line: This was a case where the employee’s personal circumstances (psychological injury, long service, good previous record) were considered sufficient to make dismissal too harsh a sanction, even though misconduct clearly occurred.
 
In cases involving the misuse of social media, the key issues are:
  • whether the employer had a policy on the (mis)use of social media
  • whether the posts identified the employer
  • whether they had the capacity to damage the employer’s reputation or business viability – in this case, not so according to the FWC.

Read the judgment



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