The perils of posting comments about fellow workers on social
media networks are highlighted in Damian O'Keefe v Williams
Muir's Pty Limited T/A Troy Williams The Good Guys where
the applicant (O) allowed his frustration at not being paid
his correct commission entitlements over a period of months to boil
over into the following Facebook posting:
"(I wonder) how the f*ck
work can be so f*cking useless and mess up my pay again. C..ts are
going down tomorrow."
The Respondent's concern was that:
an employee had called a female employee a "c..t" and
had done so publicly on his Facebook page where other employees
could see it; and
the reference to "c..ts are going down tomorrow"
constituted a threat to the Respondent's Operations Manager (T)
who was responsible for sorting out the commission payments.
O was contacted the same day to be told that his comments
had been taken as an intention to resign. Upon his return to work,
he denied that he had resigned, or intended to, but admitted that
the comments had been directed at T. Following an exchange between
O and the Respondent, he was asked to leave the premises and later
received a letter of dismissal.
Deputy President Swan noted that, although T herself did not
have access to O's Facebook page, O's colleagues did and it
would be difficult to imagine that O was unaware of the
consequences of his actions. The Employee Handbook stated that:
"In communicating with other
staff, customers and suppliers employees should be courteous and
polite, maintain a high level of honesty and integrity and present
themselves and the business professionally. Employees will not use
offensive language, resort to personal abuse or threaten or engage
in physical contact".
Even without such a warning, it was said that "common
sense would dictate that one could not write and therefore publish
insulting and threatening comments about another employee in (this)
The fact that the comments were made away from home made no
difference as the permissions allowed them to be read by selected
work colleagues and they soon spread to T. The separation between
home and work was now less pronounced than it once was and O's
conduct was sufficiently serious to amount to a repudiatory breach.
His application was therefore dismissed.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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