Australia: Social media evidence – can it be used by employers in court?

Last Updated: 20 November 2013
Article by Brett Feltham and Emily Slaytor

The pervasiveness of social media means it is now common for information posted to social media websites, such as Facebook, to be used as evidence in legal proceedings.

If an employer is able to assemble evidence from a social media site that exposes irregularities in an employee's version of events, this evidence may prove crucial during a hearing or during any earlier stage of mediation or conciliation.

Contemporaneous social media postings will generally prove one particular position or version of events and parties often seek to adduce evidence of social media postings for this purpose.

Two recent decisions have shed some light as to how the Courts and the Fair Work Commission (Commission) will view and apply evidence of social media postings in an employment and workplace relations context.

The First Decision

In August this year, in Il Migliore Pty Ltd v Kelly McDonald the Full Bench of the Commission considered the meaning and effect of an employee's numerous Facebook status updates to overturn an earlier decision in which the employee was found to have been unfairly dismissed from her employment and was awarded compensation.

The employee, Kelly McDonald, was employed as a pastry worker at a small biscuit shop, Il Migliore. On 22 December 2011, the last day of work for the year before the business had a compulsory shutdown, Ms McDonald told the business owner, Ms Lindsey, that she was leaving, that this would be her last day, and that she was confident of getting a job in veterinary nursing (which was her preferred career).

Ms Lindsey offered Ms McDonald the opportunity to take on casual shifts with Il Migliore until she found work as a veterinary nurse. As events transpired, Ms McDonald did not find a veterinary nursing position and she returned to work some casual shifts at Il Migliore when the business reopened on 23 January 2012.

On 3 February 2012, Ms Lindsey sought a commitment from Ms McDonald that she would work there for several months as the business wanted to secure staffing levels and plan future recruiting requirements.

On 8 February2012, Ms McDonald handed Ms Lindsey a Centrelink separation certificate which she had completed saying that Ms McDonald was "leaving voluntarily due to a career change". The form required a leaving date which Ms McDonald nominated as 17 February. When asked by Ms Lindsey if she was sure, Ms McDonald replied "yes".

Ms McDonald then subsequently made an application for an unfair dismissal remedy in the Fair Work Commission claiming she was dismissed without notice on 3 February 2012. At first instance, her claim was successful. The Commission found that Ms McDonald, as a permanent (rather than casual) employee as at 3 February 2012, had the right to continue in her employment without the need to give the commitment sought by Ms Lindsey on that date. The Commission found that Ms Lindsey's conduct on 3 February 2012 constituted a repudiation of Ms McDonald's contract of employment because it established that Il Migliore was only prepared to continue her employment relationship if Ms McDonald gave that commitment, which would result in Ms McDonald forgoing her statutory rights.

On appeal, the Full Bench considered Ms McDonald's contemporaneous Facebook postings during the period 22 December 2011 to 1 February 2012, as these posts were indicative of her state of mind as to her employment.

On 22 December 2011, Ms McDonald posted:

"Last day of work for the year! Hello Vet Nursing next year! =D (hopefully if all goes well)"

This post was referred to by the Commission at first instance in finding that Ms McDonald had been unfairly dismissed. In particular, the Commission considered her comment "Last day of work for the year" (emphasis added) indicated that she intended to return to work the following year.

However, Ms McDonald posted numerous other comments to Facebook that were overlooked by the Commission at first instance and which were consistent with the employer's case. For example, on 22 December 2011, Ms McDonald posted the following comment in response to a question from a Facebook friend, "How's everyone at il migliore?":

"Things are okay there, lol. I'm actually leaving and doing vet nursing. Just waiting to hear back from some places. Don't feel like my future is in hospitality anymore!"

The Full Bench interpreted "lol" to convey sarcasm suggesting that things were not okay at Il Migliore, and that her statement that she was leaving "fundamentally corroborates the employer's case."

Subsequent Facebook posts were also held to support the employer's case. On 8 January 2012, Ms McDonald posted:

"I'm switching to Veterinary Nursing. Over hospitality. Waiting to hear back from some people so fingers crossed."

On 9 January 2012, Ms McDonald was asked by a Facebook friend, "Have you started studying? What happened with pastries?" Ms McDonald responded:

"Not yet. Have to start working first! Pastry is a hobby, not a career I have decided."

The Full Bench considered that Ms McDonald's comment "Have to start working first" suggested that she considered herself without a job as a 9 January 2012. On 22 January 2012, Ms McDonald posted:

"Just don't know what to do. Should I go for the job I would love and go broke in the process? Or find another?"

And on 1 February 2012 she posted:

"Want a job soon otherwise I won't survive long."

The Full Bench held that these posts were "fundamentally inconsistent" with Ms McDonald's evidence that she was dismissed without prior notice on 3 February 2012, and that rather, the posts suggested that she considered herself jobless at that time and needing to find another job.

Ultimately, in finding that Ms McDonald was not unfairly dismissed, the Full Bench found that collectively the entries on Ms McDonald's Facebook page "fundamentally corroborate the employer's case" and that she "did not provide a satisfactory explanation for the inconsistency between these Facebook posts and her version of events."

Further, the Full Bench disagreed with the Commission's finding that the commitment sought from Ms McDonald by Ms Lindsey involved a repudiation of Ms McDonald's contract of employment.

The Full Bench concluded that a new employment relationship of a casual nature was established in January 2012, and therefore, there was no ongoing employment relationship (or any employment relationship) for Ms Lindsey to repudiate as at 3 February 2012.

The Second Decision

The second and more recent case involved a sexual harassment claim, which was allowed to proceed despite it being filed approximately 90 days out of time.

In Culpin v Scandinavian Tobacco Group Australia Pty Ltd & Anor, the Federal Circuit Court held that an employee's social media postings did not undermine the other evidence she presented to the Court in support of her application.

The applicant, Ms Stacey Culpin, was employed by Scandinavian Tobacco Group Australia Pty Ltd (STGA). She alleged she was subjected to sexual harassment by her manager from January to July 2012.

Ms Culpin made an application to the Australian Human Rights Commission (AHRC) on 17 August 2012 which was terminated by the AHRC on 4 March 2013. Ms Culpin then had 60 days within which to lodge an application with the Federal Circuit Court.

However, she did not file her application with the Court until 2 August 2013.

Ms Culpin argued that one of the reasons for the delay was that she was suffering from a "protracted and significant depressive illness before, during and after the 60 day period." To support this, she produced medical evidence to the Court from her two treating doctors which supported her diagnosis and the effect that it had on her ability to deal with legal proceedings. The doctors agreed that she was unable to attend Court while being treated for anxiety and depression and that she was "incapable of thinking clearly enough to pursue legal proceedings".

STGA argued that her incapacity was the subject of gross exaggeration and produced evidence of social media networking undertaken by Ms Culpin during the period in which she claimed to be incapacitated. Ms Culpin's social media posts revealed that during the period she had been travelling, that she was setting up a small business, and that she had started a new relationship. For example, her Facebook status was updated on 4 April 2013 to state that she was "In a relationship".

On 16 May 2013 she posted to her Twitter account:

"Going out of town for a week and need somewhere for my 2 maltese shitzues Nang N BoBo Culpin to stay. I don't..."

On 24 June 2013 she posted to Twitter:

"The countdown is on. 5 more sleeps until the very first Forever Flowering Store opens it's [sic] doors..."

There were other social media postings similar to those listed above.

STGA submitted that Ms Culpin's social media updates "reveal an excited woman setting up and fostering her business" and that this evidence weighed against her submission that she was not in a condition to institute the Court proceedings within the requisite time frame.

The Court agreed that Ms Culpin was able to socially network, but did not agree that the evidence of her social media networking demonstrated that she did not have a legitimate reason for filing her claim out of time.

Specifically, the Court stated in relation to Ms Culpin's social media updates that:

"the content and the nature of those postings... is not, in the Court's view, such as to undermine the opinions of the applicant's medical experts."

How will the Courts likely view social media postings in future?

As this area develops, whether contemporaneous social media postings hinder or support one particular version of events, will be a question that will depend upon the individual facts and circumstances of each case.

Social media postings that are inconsistent with an applicant's version of events will not necessarily weaken other evidence submitted in support of an applicant's case. This is particularly so where evidence from an expert is also tendered, such as medical evidence provided by treating doctors or specialists.

Where social media postings highlight unexplained inconsistencies and where there is no independent expert evidence to the contrary, or where the inconsistencies cannot be explained to the satisfaction of the Court or Commission, information posted to social media sites is likely to be found to mean precisely what the posts would indicate, as was the case in the Il Migliore decision discussed above.

Certainly, an employee's non-workplace use of social media may end up having a workplace impact.

If an employer is able to assemble evidence from a social media site that exposes irregularities in an employee's version of events, this evidence may prove crucial during a hearing or during any earlier stage of mediation or conciliation.

If the employee is aware early on that the employer has evidence of the employee's social media postings that are otherwise inconsistent with an employee's version of events, this may encourage the employee to discontinue his or her claim or otherwise look to settle that claim.

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.

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