Can you dis­miss an employ­ee for a Face­book post?

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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