Can you fire someone for a social media post?

by Amber Chandler, partner, workplace law and compliance at Barker Henley

What happens when a disgruntled employee posts a rant on their Facebook page about their employer? What about when a manager sees their employee’s Instagram post showing them engaging in personal activities during work time? What about a post that spouts an employee’s personal views about an issue that the employer does not agree with?

These scenarios and many others have been considered by Australian courts and commissions in the context of employment disputes over the past decade since advent of social media. The main lesson for employers that has emerged from these cases is: Don’t be hasty!

Evidence of personal activity on work time
The most recent decision concerning social media was delivered by the Fair Work Commission recently. The particular factual scenario in Petersen v Kizuri Capital Pty Limited, Maycorp Pty Ltd and Cricketwood Capital Pty Ltd t/as Allpet Products [2020] FWC 5332 involved a salesperson who was summarily dismissed in April this year after a series of events over a few weeks, including failing to consistently provide reports, exhibiting (in her director’s view) rude behaviour during a teleconference, not disclosing that she carried on a business which may be (in the director’s view) in competition with the employer’s business, and finally --- in what appears to have been the last straw --- posting content on Instagram which showed her attending a bridal boutique and driving a friend to the airport during work time.

All these things together are matters which would concern any reasonable employer. However, in this case, it was the employer’s failure to properly assess and investigate each issue in context and their hasty action in dismissing the employee that was their undoing. The employee was found to have been unfairly dismissed and was awarded $9,120.00 in compensation.

Read more: Pilot who failed drug test loses unfair dismissal claim

DP Anderson observed that not all performance failures are a valid reason for dismissal and a consideration of context and circumstances is required to assess their seriousness. In this case, the current pandemic was seen to have played a mitigating role.

The FWC particularly noted:

• The employer had failed to take into account the employee’s “natural anxieties about COVID-19 (mixing with clients in public places) and all that COVID-19 could mean for her job security”;
• The employee’s days and wages had been cut by 20% due to economic effects on the business and she was working remotely covering customers in two states; and
• The employer, in requiring competing and conflicting obligations of their employee, should not have objectively assessed her performance against standard performance criteria at this difficult time.

DP Anderson observed that it would have been more appropriate for the employer to issue a formal warning, rather than a dismissal over the performance issues.

In relation to the Instagram posts, the evidence before the Commission was that the director, after becoming frustrated with the employee on all of the above performance issues, looked at her Instagram account over the Easter long weekend and saw what they believed was evidence of the employee conducting a competing business, as well as personal activities being conducted on company time. The director then cross-referenced the Instagram posts with the employee’s work schedule, orders and GPS data from the company iPad the employee used, reached the conclusion that the employee was dishonest, and made the decision to summarily terminate her employment.

However, an examination of the employee’s own business by the Commission found there was no evidence it compromised her employment obligations to the company and thus this was not a valid reason to terminate her employment. Neither was the director’s conclusions about the Instagram posts which were tested in evidence and were found by the Deputy President to be factually wrong or did not meet the standard of proof.

Social media rants
Another social media case in the FWC also emphasises how important it is for employers to maintain a cool head when discovering something about their employees through social media. In Murkitt v Staysafe Security t/as Alarmnet Monitoring [2019] FWC 5622, an employee posted a rant on Facebook about the company they worked for and was dismissed. The Facebook post was to the effect that the previous family-owned Adelaide business had been bought by Victorians and the new owners did not care for clients or their staff and the employee no longer enjoyed working there. It was a private Facebook account where the employee’s posts could not be seen by the general public, only those who were “friends”. It appears that one of the employee’s “friends” then leaked the post to the employer.

The Fair Work Commission found that the employer’s actions in dismissing the employee for this one-time breach of the company’s social media policy was an overreaction. Commissioner Platt agreed with the employer that the post was a valid reason for dismissal as its content repudiated the employment relationship. However, he found the dismissal was harsh in the circumstances due to the employee’s mental health condition, her length of service and the lack of any previous performance issues.

Conclusion
While glimpses into an employee’s personal life and opinions can cause a great deal of angst for employers, they should think twice before dismissing an employee because of it. A “big picture” approach, with consideration of the context and circumstances of an employee’s performance and conduct issues, is recommended. This includes taking into account:

• Does your company have a social media policy that covers this particular situation and was the employee aware of it?
• Whether the social media post has caused any financial damage to the company;
• Whether the social media post is of a nature to be said to have compromised the employment relationship;
• Before drawing conclusions about the activities the employee is seen performing in the social media post, question whether there is any actual proof of dishonesty to the company;
• Is this the first time the employee has had a performance or conduct issue?
• How many years of service does the employee have with the company?
• Does the employee have a mental health condition that may explain the content of the social media posts?
• Are there any other extenuating circumstances?

As VP Hatcher of the Fair Work Commission once said in another case (which was not a social media case, but did concern an employee’s out-of-hours conduct), employment could only be validly terminated because of out of hours conduct where the conduct is “of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”