An employee who wrote a “crude and immature” Facebook post assumed to be about his employer was found to be unfairly dismissed in one of many recent Fair Work Commission Facebook-related dismissal cases.
The Fair Work Commission found the dismissal to be unfair due to lack of evidence that the post was directed at either the business or its employees and that the employee had been provided with the employer’s social media policy.
This case, among others, is a reminder for employers to be cautious about seeking action against employees for their social media conduct. It is important to note that a sufficient connection to the workplace is required before any legitimate action can be taken. Employers must also consider the following before taking action against an employee:
- Is there a sufficient connection to the employee’s work or the business so that the employer can be identified and/or the employer’s reputation or business can be damaged?
- Were the comments or materials made publicly?
- Were the comments seen by (or directed to) other employees?
- Is there a breach of the law (discrimination, harassment, bullying etc.)?
- Is there a breach of policy which has been communicated to the employee?
While an employee’s online conduct may not always be deemed appropriate, it does not determine legal risk. Employer’s need to be aware of the things they should look out for before taking any action to dismiss their employee for their social media conduct. It is also important to ensure your business has a clear and comprehensive social media policy and that this is provided to all employees.
For more information about workplace social media conduct and how we can help advise you, please contact us on (08) 9316 9896 or firstname.lastname@example.org.