An employee posts crude and offensive comments on social media. Can such a post give valid grounds for the termination of employment?
Do employer policies have a role in these situations?
These and other matters were examined in the recent decision of the Fair Work Commission in Somogyi.
The Facts
The worker was employed for just over a year, when his employment was terminated because of a statement he posted on his Facebook page.
The worker subsequently brought an unfair dismissal claim against his employer, alleging that the employer's managing director telephoned him one afternoon and he was told to "return all company property to the office" and that he was "fired".
The worker alleged that he was not given an explanation as to why his employment was being terminated. The reason only became apparent to the worker, he claimed, when he received the employer's response to his unfair dismissal claim. This referenced the worker's use of social media and attached a copy of the relevant post.
The post reportedly stated,
"I don't have time for people's arrogance. And your(sic) not always right! your position is useless, you don't do anything all day how much of the bosses(sic) xxxx did you suck to get where you are?"
The employer claimed that it had a policy in place dealing with the use of social media (the Policy), which included in part,
"Usage of social media at work found to be improper or time wasting will result in disciplinary action".
The employer alleged that the post had been seen by several of its employees, and as a result, the managing director was advised of it.
The worker claimed that the offending post had been posted while he was having a break at work, and he denied having been previously informed about the Policy.
The managing director admitted that he did not provide the worker with any real opportunity to explain his behaviour at the time that he told the worker that his employment was being terminated.
The worker posted a re-wording of the offending post, explaining that his previous status update was in reference to his mother allegedly being mistreated by her employer. The worker claimed that the post was an attempt to provide support for her.
Findings
The Commission found that it was difficult to conclude that the employer had a valid reason to dismiss the employee, based on the limited submissions and evidence before it. While acknowledging, among other things, that the post was "undoubtedly crude", it was noted that the worker's hours were flexible and it could well have been posted while he was on a break. The Commission also noted that there was nothing in the submissions and evidence of the employer providing confirmation or suggesting that the post was directed at its business or to any of its employees.
The Commission found that the employer had not established a valid reason to terminate the worker's employment, stating:
"While it is difficult to see how such a crude and offensive post could ever assist in achieving this objective (to support the worker's mother) this explanation about why it was posted appears to be the only plausible explanation that exists ...
The concerns about the robust language in the post are also tempered by the fact that similar language appears to have been used in the workplace at various times".
In ultimately finding that the worker's dismissal was unfair, and that re-instatement was not a "realistic option", the Commission awarded the worker compensation of approximately $6,000.
Conclusion
This decision shows that if policies are put in place by an employer, it is important that employees are made aware of them. Although there was a suggestion that the social media policy in question might not have applied in any event because the worker was taking a "break", in other circumstances evidence of the worker having knowledge of it might have made the prospect of a successful claim more difficult.
Even if an offending post is posted outside of working hours, a more broad-based policy dealing with the conduct of employees on social media, particularly in terms of behaviour that might harm the reputation of the employer, may be of assistance to an employer.
The decision also reinforces the requirement that employers have a valid reason for the termination of an employee's employment, and give them an opportunity to respond to any reason for the termination (before it occurs) related to the "capacity or conduct" of that worker.
Obtaining appropriate advice in relation to the drafting of policies, and prior to terminating the employment of an employee, should always be considered.
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.
