In brief - Fair Work Australia decisions about employee
Facebook posts can vary
In one recent case, Fair Work Australia (FWA) decided that an
employee's Facebook post constituted threatening behaviour and
justified termination. In another, FWA found there was no detriment
to the employer's business and the termination was
Workplace gripes voiced online can be grounds for
With the increasing popularity of social networking and the
blurring of the boundary between work and personal life, many
employees are now choosing to voice their workplace gripes
Employees no longer save complaints about their working day for
the local pub or coffee shop, instead expressing their views online
to a potentially global audience which is listening 24 hours a day,
seven days a week.
As daunting as this may seem to employers, one encouraging fact
is that employee behaviour outside working hours may very well be
grounds for termination if it is determined by the courts to be
serious enough to be considered a breach of the employment
The employee, who posted "Damian O'Keefe wonders how
the f*** work could be so f***ing useless and mess up my pay again.
C***s are going down tomorrow", argued that he was extremely
"angry" at the time and did not intend for his supervisor
to see the comment.
Although the employee did not name his employer and his privacy
settings were set to maximum, he did have a number of co-workers on
his Facebook friends list who saw the comment and passed it on to
his superiors. Ultimately, it was found that the comment
constituted threatening behaviour and that the Good Guys were
justified in terminating Mr O'Keefe's employment.
Facebook post found to be not detrimental to the employer's
The decision of
Fitzgerald v Dianna Smith t/as Escape Hair Design 
FWA 7358, however, demonstrates that the issue is not clear cut.
Here an employee 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!!!
The employer argued that at least a handful of the Salon's
clients could have seen the comment, which it alleged was damaging
to the business. In these circumstances the tribunal found that the
comment was "foolish" and an "outburst" but was
nevertheless only viewable by the employee's Facebook friends
and was not detrimental to the employer's business. The
termination of employment was found to be harsh, unjust and
unreasonable. An appeal by the employer was dismissed.
What does this mean for your business?
Regardless of the size of your business, we recommend that you
have a workplace policy which defines what constitutes acceptable
employee use of information technology. The policy should be
brought to the attention of all employees and you should take
disciplinary action in the event of a breach.
If you become aware that an employee has made comments about
their employment on a social networking site, consider the severity
of the comments made before taking action. It may be a natural
instinct to go in with guns blazing, but it is far better to make a
realistic assessment in order to minimise the risk of litigation
challenging a termination of employment.
Questions to ask yourself about online comments posted by your
Consider asking yourself:
Were the comments threatening?
Did they name you as the employer?
How many people could have seen the comments?
Were they likely to cause damage to your business?
Ultimately employers need to be aware that social networking
could result in workplace dirty laundry being aired for all to
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.
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