Social Media and Unfair Dismissal| Fairwork Online

Social Media and Unfair Dismissal

Dismissal cases involving social media have grown in numbers in recent times, increasing the need for courts and tribunals to apply the law in new and novel situations. The implications of social media for employers and employees are still being fully determined, but the cases below provide useful tips for employers.

Facebook rant from home
An employee was dismissed when he posted a crude and threatening Facebook rant on his home computer outside of business hours. The employee posted he “wonders how the f**k work can be so f**king useless and mess up my pay again. C**ts are going down tomorrow”.

The company's employee handbook referred to the need to be courteous and polite to colleagues as well as customers and contained detailed policies, including policies on sexual harassment and workplace bullying.

The employee argued that he had blocked the pay manager from seeing his comments on Facebook, and that she would not have been able to see it. However, his Facebook privacy settings meant that 11 coworkers could read the post, and this constituted a breach of the company's employee regulations.

Fair Work Australia found that the employee’s actions amounted to serious misconduct, and the employee’s unfair dismissal application was dismissed.

Excessive use of social media
An architect was dismissed by his employer for excessively using social media during work hours. The employer alleged that the architect had logged more than 3,000 Google Mail chats in a three-month period.

The architect denied the allegation, and argued that he had never used social media websites for more than 20 minutes on any given work day.

In this matter, there was not enough evidence to establish that the architect had engaged in the alleged conduct. No allegations had been put to the architect before his dismissal, and he had not been given any opportunity to respond. The employer should have held a meeting with the architect to put the allegations to him and allow him the opportunity to reply.

Fair Work Australia found that the employee had been unfairly dismissed, and awarded him compensation.

'Planking' and posting on Facebook
Two employees were dismissed for 'planking' at work and posting photos of the act on Facebook. One employee was photographed by the other about four metres off the ground on top of a spray booth at work, while the other employee was photographed planking across the tynes of a forklift at a similar height.

Both employees were also fined $1,500 each by the Court for breaching Vicotiran safety laws.

Employers should be aware of the ever-increasing impact of social media at work, and the implication of these social media decisions:
• it does not matter whether the employer is named on a social media site or not. When posts relating to work are made by its employees, employers may be able to take action against the employees
• the separation between social media conduct at home and at work is now less pronounced, and this appears to suggest that in future decisions, Fair Work Australia will take a broader approach
• employees may not be able to rely on the defence that they blocked their employers from reading their social media posts and rants due to varying privacy settings which may allow other employees to read the post. Also, this action of blocking certain people from reading certain social media posts may be an action that provides evidence of the employee's knowledge of wrongdoing.


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