Two recent decisions highlight the differing outcomes for
employees who criticise their employers on social media sites
outside working hours. In O'Keefe v Williams Muir's Pty
Ltd T/A Troy Williams The Good Guys  FWA 5311 a decision
of Fair Work Australia delivered on 11 August 2011, a Townsville
worker who was dismissed after making insulting and aggressive
comments about his employer on Facebook lost his claim. The claim
failed primarily due to the threatening nature of some of the
comments, which he conceded were directed at a particular
co-worker. Angry at the company's delay in paying his
commissions, Mr O'Keefe wrote on his Facebook page that he:
"... wonders how the f... work can be so f...king useless
and mess up my pay again. C...s are going down tomorrow."
The comments were posted outside of working hours but were visible
to 70 of the worker's Facebook friends including 11 co-workers:
the female co-worker at whom the comments were directed soon became
aware of them.
The employer's Staff Handbook stated 'Employees will
not use offensive language, resort to personal abuse or threaten or
engage in physical contact'. The employer interpreted the
worker's comments as threatening the safety of the female staff
member responsible for the worker's pay, with whom the worker
had been in email contact for some time before the posting. The
manner in which the threat was made and the nature of the words
used provided sufficient reason for the dismissal of Mr O'Keefe
on the ground of serious misconduct. The worker did, however,
receive 3 weeks' pay in lieu of notice which is usually
withheld where misconduct is alleged.
Clearly, the worker was angry about the non-payment of his
outstanding commissions but he was criticised by Deputy President
Swan for choosing to vent his anger on his Facebook page instead of
raising the matter with the store manager, instigating a grievance
resolution mechanism available to him and/or following up with the
Fair Work Ombudsman whom he had previously contacted about the
Contrast the outcome in the above case with the failure of the
employer's appeal in Smith T/A Escape Hair Design v
Sally-Anne Fitzgerald  FWAFB 1422. The Full Bench of
Fair Work Australia dismissed the employer's appeal against a
previous finding that its dismissal of an employee for reasons
including displaying 'public dissatisfaction with the basis
of her employment' was unfair. After working hours, Ms
Fitzgerald 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!!!
Ms Fitzgerald's comments were sarcastic rather than
aggressive and, importantly, her comments had not been seen by her
colleagues and did not identify her workplace, although her
employer was later notified of the comments. While the employer
failed on the issue of the fairness of the dismissal, it succeeded
in having the matter remitted back to FWA to determine the
compensation payable. The outcome in this case is obviously very
different to the O'Keefe case but in practical terms, while Ms
Fitzgerald won her unfair dismissal claim, she has incurred the
considerable and unrecoverable costs of both proceedings in Fair
Work Australia. The net outcome in financial terms is likely to be
very modest for Ms Fitzgerald.
These cases illustrate how employees' use of social media
outside of working hours can irreparably damage their relationship
with their employer. After hours activities are no longer immune
from scrutiny and possible sanction. Even in the absence of a
company policy covering social media usage and conduct outside the
workplace, employees should be aware that posting comments on their
Facebook page (or on other social media such as Twitter) or
conducting themselves in a manner that is critical of their
employer or offensive or threatening towards colleagues, may expose
them to disciplinary action or dismissal. Language that is
considered unacceptable if used face to face within the workplace
does not become acceptable simply because it is published via
social media out of working hours. Employers are advised to avoid
uncertainty about the use their employees are entitled to make of
social media both in and outside the workplace by implementing
appropriate social media policies.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).