In brief - Fair Work Australia decisions about employee Facebook posts can vary
In one recent case, Fair Work Australia (FWA) decided that an employee's Facebook post constituted threatening behaviour and justified termination. In another, FWA found there was no detriment to the employer's business and the termination was unreasonable.
Workplace gripes voiced online can be grounds for termination
With the increasing popularity of social networking and the blurring of the boundary between work and personal life, many employees are now choosing to voice their workplace gripes online.
Employees no longer save complaints about their working day for the local pub or coffee shop, instead expressing their views online to a potentially global audience which is listening 24 hours a day, seven days a week.
As daunting as this may seem to employers, one encouraging fact is that employee behaviour outside working hours may very well be grounds for termination if it is determined by the courts to be serious enough to be considered a breach of the employment contract.
Facebook post leads to termination for misconduct
For example, in the recent unfair dismissal case of O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys  FWA 5311, an employee was terminated for misconduct after turning to Facebook outside of working hours to express his dissatisfaction with his supervisor and commission payments.
The employee, who posted "Damian O’Keefe wonders how the f*** work could be so f***ing useless and mess up my pay again. C***s are going down tomorrow", argued that he was extremely "angry" at the time and did not intend for his supervisor to see the comment.
Although the employee did not name his employer and his privacy settings were set to maximum, he did have a number of co-workers on his Facebook friends list who saw the comment and passed it on to his superiors. Ultimately, it was found that the comment constituted threatening behaviour and that the Good Guys were justified in terminating Mr O'Keefe's employment.
Facebook post found to be not detrimental to the employer's business
The decision of Fitzgerald v Dianna Smith t/as Escape Hair Design  FWA 7358, however, demonstrates that the issue is not clear cut. Here an employee posted the following comment on her Facebook page: "Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!"
The employer argued that at least a handful of the Salon’s clients could have seen the comment, which it alleged was damaging to the business. In these circumstances the tribunal found that the comment was "foolish" and an "outburst" but was nevertheless only viewable by the employee’s Facebook friends and was not detrimental to the employer’s business. The termination of employment was found to be harsh, unjust and unreasonable. An appeal by the employer was dismissed.
What does this mean for your business?
Regardless of the size of your business, we recommend that you have a workplace policy which defines what constitutes acceptable employee use of information technology. The policy should be brought to the attention of all employees and you should take disciplinary action in the event of a breach.
If you become aware that an employee has made comments about their employment on a social networking site, consider the severity of the comments made before taking action. It may be a natural instinct to go in with guns blazing, but it is far better to make a realistic assessment in order to minimise the risk of litigation challenging a termination of employment.
Questions to ask yourself about online comments posted by your employees
Consider asking yourself:
- Were the comments threatening?
- Did they name you as the employer?
- How many people could have seen the comments?
- Were they likely to cause damage to your business?
Ultimately employers need to be aware that social networking could result in workplace dirty laundry being aired for all to see.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.