Can you be fired for a social media post?

In a recent decision, the Fair Work Commission considered the dismissal of a casual instructor from a Melbourne swim school. The respondent was one of three swim schools in the local area. Due to COVID-19 restrictions, the school was forced to close from March to November 2020, during which time the applicant received JobKeeper payments.

In early January 2021, another instructor noticed a post in a private Facebook group, calling for recommendations for a local swimming school suitable for five- and seven-year-old children. The instructor responded, recommending the respondent’s swim school. The instructor later checked the notifications of the Facebook thread and saw that the applicant had also commented, recommending a different swim school in the area.

The respondent called the applicant to a meeting, where she was questioned about her Facebook comment. The applicant, who worked for both swim schools, said she believed she had done nothing wrong and certainly nothing intentional. Following the conversation, the respondent summarily dismissed the applicant from her employment. It alleged that her conduct constituted serious misconduct in that it was “wilful or deliberate behaviour” that would cause “serious and imminent risk to the reputation, viability or profitability of the employer’s business”.

The Commission described the applicant’s behaviour as “foolish, naïve and ill-judged and a regrettable example of an employee using social media without carefully considering the potential consequences”, particularly given she had benefitted significantly from the respondent’s loyalty during COVID-19.

However, although it found the respondent genuinely believed that the applicant had committed an act of serious misconduct, it was not satisfied that this belief was based on reasonable grounds.

The Commission noted the lack of evidence of the applicant’s “deliberate or malicious intent” and the fact that the applicant’s Facebook comment did not denigrate the respondent. Further, the Commission was not satisfied that there was any evidence of harm or damage to the respondent beyond mere speculation. With this, the Commission was not persuaded that the applicant’s conduct was so “grave” or “repugnant” as to establish a valid reason for her dismissal.

Key Takeaways

• Employees should be aware that their social media conduct may have ramifications for their employment
• That said, an employee cannot be dismissed where their social media conduct does not constitute a valid reason