20 April 2011 Can you dismiss an employee for a Facebook post?

By Warwick Ryan, Partner and Nathan Day, Law Clerk

In brief – Postings on social media can have consequences for employees

An employee who thinks that they may say what they want about their employer on Facebook with total immunity from consequences is foolish, according to Fair Work Australia (FWA).

The rise of social media

Social networking sites such as Facebook and Twitter are increasingly taking up the time spent by Australians on the internet. According to research conducted by Nielsen in mid-2010, the average time spent by an Australian on social media is almost seven hours per month.

This increasing use of social media presents both opportunities and risks for businesses. Many businesses have now incorporated social media into their marketing strategy in order to attract new clients and increase engagement with existing ones.

However, the rise of social media is a double-edged sword for companies, because their employees can tarnish the reputation of the business and its brands by posting defamatory or offensive status updates and uploading inappropriate photos. The question for employers is whether they can dismiss an employee for doing this.

Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design

Ms Fitzgerald was employed as a hairdresser by Escape Hair Design.

Prior to the Christmas break, Escape Hair Design issued a warning to Ms Fitzgerald in relation to her punctuality because she had arrived at work late and left early on a number of occasions. Escape Hair Design made a payment to her consisting of her holiday pay and bonus.

Ms Fitzgerald was upset by both the warning and the payment because she was not paid for the holiday break and felt that she was entitled to a larger bonus. She posted on her Facebook profile: "Xmas 'bonus' along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! Awesome!!!"

The owner of the business, Dianna Smith, first became aware of Ms Fitzgerald’s post in January 2010 but did not to take any immediate action.

However, tensions came to a head in February when a close friend of Ms Fitzgerald’s died. In agreement with Ms Smith, Ms Fitzgerald took a week off work. Upon her return she was clearly not coping well. Without Ms Smith's approval, Ms Fitzgerald re-booked her client appointments for the near future so that they were consecutive.

When Ms Fitzgerald arrived at work on the following day, she was surprised to find that her key would not unlock the door. Ms Smith subsequently handed Ms Fitzgerald a termination letter which justified the termination on the basis of, amongst other things, "public display of dissatisfaction of base of employment - Facebook".

Valid reason for dismissal

Ms Fitzgerald lodged an unfair dismissal claim with FWA. The central issue was whether Escape Hair Design had a valid reason for the dismissal.

FWA set out the guiding principle that a valid reason is one which is "sound, defensible and well founded" and "not 'capricious, fanciful, spiteful or prejudiced'".

Facebook posts are public comments

FWA recognised the seriousness of Ms Fitzgerald’s Facebook post, observing the increasing tendency of employees to use social networking sites to display their dissatisfaction with their employer and acknowledging that a Facebook post is a public comment because it "can be seen by an uncontrollable number of people" and "remains on Facebook until removed".

FWA stated that the case concerned the regulation of an employee's behaviour outside of work and held that it is “well accepted that behaviour outside working hours may have an impact on employment 'to the extent that it can be said to breach an express term of [an employee's] contract of employment'".

In effect, FWA emphasised that in certain circumstances, a Facebook post by an employee may be sufficient to warrant dismissal. However, this depends on whether the post will adversely affect the employer's business.

Was the employer named on Facebook?

FWA considered whether the employer was expressly named in the post or could be identified from information in the employee's profile. Escape Hair Design was not named in Ms Fitzgerald’s post. This information was also not available in her profile because she did not specify where she worked.

Did clients access the post?

FWA also considered whether clients of the business accessed the post. In this case, only five to ten clients of Escape Hair Design were friends with Ms Fitzgerald on Facebook and thus had access to the comments. However, they may not have read the post and, even if they did, they were close personal friends of Ms Fitzgerald and were only clients of Escape Hair Design because of this close personal relationship.

In view of these factors, the tribunal found that the post did not adversely affect Escape Hair Design and hence was not a valid reason for dismissal. FWA approved the unfair dismissal application and awarded compensation of $2,340.48 less tax to Ms Fitzgerald.

Trust and confidence in the employment relationship

It is important to note that FWA highlighted that the post may have “affected Ms Smith's trust and confidence in Ms Fitzgerald" and thereby provided a valid reason for dismissal. However, Ms Smith chose not to take immediate action when she first became aware of the post, suggesting that she did not consider the trust and confidence in the employment relationship damaged to an extent that warranted disciplinary action.

Appeal to the Full Bench

The Full Bench recently approved the approach taken by the tribunal in determining whether the Facebook post was a valid reason for dismissal.

However, the Full Bench criticised the tribunal's approach in failing to give adequate reasons for the decision on the compensation awarded to Ms Fitzgerald. Further, it was found that the amount of $2,340.48 bore no relationship to any pay period and had "a random appearance". The Full Bench returned the matter to the tribunal to provide adequate reasons for the compensation awarded.

Implications for employers

This decision highlights that employers should be particularly wary of any posts that their employees may make on social networking sites because of the potential damage that may be caused to the business. If employers become aware of posts which could harm the business, it is crucial that they take immediate action to remove the post from the social networking site as soon as possible and discipline the employee appropriately.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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