“Horrific stuff” — social media use and unfair dismissal

Inappropriate social media use by employees can damage productivity, harm workplace cohesion and culture, adversely impact the company’s external reputation, and lead to the publishing of a company’s confidential information.

Given the litany of negative effects that unsuitable “Facebooking” can have on a business, it is little wonder that employers may seek to terminate employees who act offensively online regardless of whether the posting happened at home or at work.

However, the recent decision of Renton v Bendigo Health Care Group [2016] FWC 9089 (30 December 2016), and other social media unfair dismissal cases demonstrates the common pitfalls that employers can fall into when looking to terminate employment for inappropriate social media use.

Renton

Renton concerned an employee who “tagged” two colleagues in a YouTube video posted on Facebook, titled “Horrific Stuff – Tag a Mate”, depicting an obese woman dropping her stomach onto a man on all fours while stating “how heavy is that” and “a little horsey.” The tags were accompanied by the comment “[Male Colleague] getting slammed by [Female Colleague] at work yesterday.” The employee in question was terminated for misconduct and made an unfair dismissal application to the Fair Work Commission.

When finding that there was a valid reason for dismissal, Commissioner Bissett had particular regard to the following factors:

  • The post affected the health and safety of other employees
  • The post had the potential to adversely affect the reputation of his employer given that the employee’s occupation and place of work was listed on his Facebook account
  • That the Facebook post was not private and could be seen by an ever increasing amount of people
  • The employee in question was friends with several other employees on Facebook; and
  • The comment left with the tag suggested that the ‘slamming’ took place at work.

Although finding there was a valid reason for dismissal, Commissioner Bissett concluded that the dismissal was unjust, harsh and unreasonable due to the employee’s unblemished employment record and his joint care of young children, one of whom suffered from Attention Deficit Hyperactivity Disorder.

Commissioner Bissett also counselled Bendigo Health to monitor their own Facebook content after a photo on Bendigo Health’s website came to the Commission’s attention which showed employees in ‘traditional nurses uniforms’ squeezing a fake naked bottom while participating in a fun run.

Facebook Hacking, Isis Supporters and Trolling

In Wilkinson-Reed v Launtoy Pty Ltd [2014] FWC 644 (24 January 2014) the Commission awarded the statutory cap of compensation (26 weeks’ pay) to an employee who was dismissed for the exchange of private Facebook Chat messages with her supervisor’s ex-wife which denigrated the supervisor in question. These messages were obtained by the supervisor when he hacked his ex-wife’s Facebook account to change her marital status from “single” back to “married”.

Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186 (13 September 2016) concerned an unfair dismissal application by an airport employee terminated for posting Facebook comments that appeared to support ISIS and Islamic extremism, including the comment “we all support ISIS.” Mr Singh asserted that this comment was made sarcastically and that other posts on his Facebook page would demonstrate that he did not support Islamic extremism. Mr Singh was friends with a number of colleagues and a couple of supervisors, one of which reported his Facebook posts. During the course of the investigation Mr Singh was only provided with the opportunity to respond to three of five complaints of posts. The Commission found that the termination was unjust, harsh and unreasonable due to the failure to fully investigate Mr Singh’s Facebook page for the context that would absolve him.

Little v Credit Corp Group Limited [2013] FWC 9642 (10 December 2013) involved an employee who posted derogatory comments on a not for profit’s (NPF) Facebook page. The NPF in question was associated with his employer and the employee regularly liaised with it in the course of his employment. The employee had listed his profession as “Dinosaur Wrangler at Jurassic Park”, but the NPF’s Facebook page moderator discovered the employee’s place of employment from the following post on his page:

“On behalf of all the staff at The Credit Corp Group I would like to welcome our newest victim of butt rape, Jack Hoye. I’m looking Forward to sexually harassing you behind the stationary cupboard big boy.”

Deputy President Sams, in finding that there was a valid reason for Little’s dismissal, had particular regard to the Respondent’s social media policy, prior warnings concerning social media use to Little, the sexually explicit nature of the above post and the capacity for such posts to damage the interests and reputation of Credit Corp Group.

What should employers do?

When dealing with a potential dismissal for social media use employers should be careful to:

  • Document the social media use in question
  • Put each example of inappropriate social media use to the employee for response
  • Conduct an investigation into the posts in question and the remainder of the employee’s Facebook account (where visible); and
  • Take into account the employee’s responses and prior performance record.

As a pre-emptive measure employers should also consider putting a social media policy and training into place, and monitor the company’s own Facebook presence to ensure that it projects the image that employees should adhere to in their own postings.

What should employees do?

Employees should act proactively to avoid dismissal for online activities:

  • In each of the above cases the employees in question were Facebook friends with colleagues or supervisors who were able to report the posts in question. Wherever possible avoid making friends with colleagues on Facebook, or be prepared to act professionally and courteously at all times
  • Check your privacy settings – in each of the above cases the employee in question made submissions to the effect of “I didn’t know that others could see my posts”; and
  • Remember that nothing you do online is invisible and may be seen by your employer.

For more information contact the Employment Law Team:

William Ward — Special Counsel — Employment and Industrial Relations
(02) 6279 4336
william.ward@mvlawyers.com.au

Kirsty Easdale — Senior Lawyer — Employment and Industrial Relations
(02) 6279 4441
kirsty.easdale@mvlawyers.com.au