Ms Tamicka Louise Dover-Ray v Real Insurance Pty Limited  FWA 8544
A recent decision of Commissioner Thatcher has demonstrated that an employee's out of hours online activities can justify dismissal. This follows a series of cases involving Facebook, where employees have used the site to complain about their employers.
Tamicka Dover-Ray was employed by Real Insurance in mid 2008 as a sales agent in a call centre with a male manager. On 15 April 2009, she provided a statement which made allegations of sexual harassment against the manager.
Ms Dover-Ray's allegations were investigated by senior management who interviewed staff members and searched through a number of internal emails. A few of the interviews suggested that Ms Dover Ray initiated the flirting with the manager and seemed to enjoy it. One of the emails sent from Ms Dover-Ray to the manager had pornographic images attached and another, sent just after her promotion, expressed her appreciation for the flirting between them. It said:
"I want to thank you firstly, for the opportunity to work here. You have been a constant challenge to me and I have loved every minute of it. From the constant flirting to the first time I got to see the Human in you at conference... I still expect to be annoyed by you so don't break the habit. Lots of love, Tamicka."
Ultimately, the investigation found that Ms Dover-Ray's allegations were not made out. On the day Ms Dover-Ray learned this, she posted a blog on her MySpace webpage. It read, in part:
An employee of Real Insurance found the blog page by typing some search terms into the Google search engine. Upon hearing this, Real Insurance sent a 'show cause' letter, advising Ms Dover-Ray to remove the blog 'and forever cease publishing it... in the public arena.' Ms Dover-Ray refused and initiated an unfair dismissal claim with Fair Work Australia.
Real Insurance provided a Notice of Representation advising that it had decided not to terminate Ms Dover Ray's employment, but that she could return to work at any time. It simply required her to follow the return to work plan, which involved removing her blog post.
In relation to at whose initiative the dismissal occurred, Commissioner Thatcher reiterated the Full Bench in Australian Hearing v L Peraly, stating that 'whether or not the termination is at the initiative of the employer is not the same question as whether the termination of employment is unfair.'
In support of her argument, Ms Dover-Ray submitted that the blog could have been referring to any circumstance in her life and therefore, dismissal on those grounds was not fair.
Commissioner Thatcher held that this submission was inconsistent with an ordinary reading of the document as a whole because the blog identified Ms Dover Ray by photograph and name. It also contained the date 24 April 2009 and referred to the investigation she had just been through. Ms Dover-Ray intended that her blog be read within the workplace where it would be known to other employees that it applied to her work experience.
In his decision, Commissioner Thatcher held that, 'the conduct of Ms Dover-Ray in publishing the blog and refusing to modify or remove it within a reasonable period [is]... a valid reason for the termination of her employment.'
The Commissioner found that the dismissal was not harsh, unfair or unreasonable.
Social Networking: Employment and the Law
Tamicka Louise Dover-Ray v Real Insurance Pty Limited (2010) is not unlike many of the cases currently being heard. But, while this case it is clear that Ms DoverRay's conduct was damaging for the employer, not all use of social networking is grounds for dismissal. In Fitzgerald v Dianna Smith t/a Escape Hair Design  FWA 735 Fair Work Australia determined when out of hours use of a social networking website would be found to be in connection with employment and justify disciplinary action being taken. Ms Fitzgerald was dismissed after she had posted the following status update about her employer on Facebook:
Dismissal, in this case, was found to be unfair, but Commissioner Bissett attempted to draw the line on appropriate social networking use in the work relationship. She made it clear that employees should be wary of their use of social networking sites when having "a grumble". She said that posting comments on a website that may be seen by an indeterminate number of people is very different from complaining to friends in private and will be considered a public comment.
While social networking sites are often used outside of work hours, cases like Rose v Telstra provided that an employee may be fairly dismissed for after-hours conduct where such conduct is likely to cause serious damage to the employer's interests. With reference to these cases, Commissioner Bissett said:
"A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. A Facebook posting comes within the scope of a Rose v Telstra consideration but may go further. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences."
Implications for employers
- Posts that disparage the employer or other co-workers may be sufficient grounds for termination of employment, regardless of whether they are made during office hours. The employer must determine:
- Whether the conduct is likely to cause serious damage to the working relationship
- Whether the conduct will damage the employer's interests
- Whether the conduct is incompatible with the employee's duties.
- Conduct out of work hours or out of the office may justify fair dismissal, but employers must decide whether the connection between the conduct and the employee's work is sufficiently close
- Policies and procedures should set out clear guidelines regarding the use of social media not only at work, but out of office hours.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.