Employees' Facebook posts out of work hours can put them out of work for good

Key Points:

An employee's opinions can become a disciplinary matter if they can damage the employer's reputation or viability, or destroy the employer's confidence in them.

The boundaries between the personal and the professional have always been easy to blur. As both move increasingly online, employers and employees need a clear understanding of what online behaviour is (and isn't) subject to workplace disciplinary processes. A recent case sets out some useful guidance (Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642).

Cameron Little speaks his mind

Credit Corp Group collects consumer debt that has been written off by the lender. Christians Against Poverty (CAP) helped debtors to negotiate with Credit Corp, so the two organisations and their employees, including Mr Little, have frequent commercial dealings with each other.

Mr Little had some dealings with CAP out of work as well; he posted twice on its Facebook page:

'For reals bro, you should put a little more of funding into educating consumers on how the world works rather than just weaseling them out of debt, blah blah blah, give a man a fish/teach a man to fish.'
'No thanks, just take my advice and try to educate people about things like 'interest' and 'liability' rather than just weasel them out of contracts. #simple'

He also greeted a new colleague via a post on his own page (which did not identify him as an employee of Credit Corp):

'On behalf of all the staff at The Credit Corp Group I would like to welcome our newest victim of butt rape, Jack Hoye. I'm looking Forward to sexually harassing you behind the stationary [sic] cupboard big boy.'

Unsurprisingly, when his employer discovered this he was invited in for a conversation. This was not the first time his online activities has been noticed at work; he had been previously warned for making comments during work time on a third party's website, in breach of the company's policies.

After the meeting he was summarily dismissed on the basis of serious misconduct. He then challenged his termination as an unfair dismissal in the Fair Work Commission.

But it's in my own time!

From the start, Mr Little did not deny the allegations, or that the conduct breached his employer's Code of Conduct. His position was in essence that it was his time, his thoughts, and he hadn't identified himself on his profile as an employee of Credit Corp, so it really wasn't any of his employer's business.

Deputy President Sams pointed out:

"the applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the 'world at large' where to do so would reflect poorly on the Company and/or damage its reputation and viability... the fact the applicant made both Facebook comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee."

How important are the employer's policies and handbook?

Mr Little was well aware of the company's Code of Conduct on social media usage and Employee Handbook – indeed, he had scored quite well on the training modules to test that knowledge.

Even if he had not been, Deputy President Sams said that it would not have mattered: the applicant was bright enough to know what he had done would be a problem, either because his "joke" was highly offensive to a colleague, or because his comments would damage his employer's relationship with CAP and its wider reputation.

The Fair Work Commission upholds his termination

The Commission said there was a valid reason for Mr Little's dismissal as his conduct:

seriously damaged the relationship between him and Credit Corp;
damaged Credit Corp's interests;
potentially damaged the relationship between him and other employees;
was incompatible with his duty as an employee; and
constituted serious misconduct.

Having a valid reason is an important issue in determining whether a dismissal was unfair, but it is not determinative. The Commission will look at other factors. In this case, Deputy President Sams noted that Mr Little had been told of the reason, and given an opportunity to respond. The process had been fair and reasonable (although he might have been given more time to prepare). He was not an employee who had been there for a long time with an unblemished record, and he showed no insight into or remorse about his behaviour, despite training and one previous warning. His dismissal was therefore not unfair.

Deputy President Sams went further – Mr Little's employment ended because his conduct amounted to a repudiation of the employment contract.

Lessons for employers

In another case also decided last week, the Full Federal Court upheld a finding that an employee's dismissal for his Facebook posts was unfair. Underlying this decision were findings that:

the comments themselves were not serious misconduct;
the employee did not properly understand the privacy settings on Facebook;
there was no dedicated social media policy; and
the employee had a long record with the company (Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157).

So how do these decisions sit together? And what should employers do?

The first step is to ensure your employees understand that what they say in their own time can affect their employment. Whether they're made on social media or at the pub, their opinions can become a disciplinary matter if they can damage the employer's reputation or viability, or destroy the employer's confidence in them. In this case the Commission said anyone would have realised Mr Little's conduct was egregious, even without the benefit of training or a code of conduct. Not all behaviour will be that obviously inappropriate, so proper training is essential.

If they do breach the rules, as with any misconduct, the employer must craft the reaction to the offence. Employers might yearn for a simple rule, but they will need to conduct a proper process and not overreact.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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