Before sacking an employee, an employer must prove that the social media post is actually ‘detrimental’ to their business.
In the era of social media, it’s unavoidable that your employees may occasionally vent their dissatisfaction online for all the world to see.
Staff who take to social media to gripe about their workplaces may be giving their employer grounds to sack them – but that’s not a definite – as demonstrated in recent decisions by the Fair Work Commission.
These public displays of dissatisfaction can be damaging to an employer’s reputation and detrimental to their business, and such employee behaviour may be grounds for termination if the courts decide that it is serious enough to be considered a breach of the employment contract, says Hannah Ellis, Principal at The Workplace employment lawyers.
“Generally, when considering whether derogatory comments are detrimental to an employer, the Commission would consider factors including whether the employer was named or could reasonably be identified,” Ellis told HC Online.
So how can employers prove that comments are detrimental to their organisation?
- Retain any complaints from customers as a result of such comments.
- Provide evidence that enquiries or sales declined in the period following the employee making such comments.
- Obtain forensic data on the number of people who saw or accessed the comments and how long they remained accessible online.
- Obtain witness statements from customers detailing their concerns about dealing with the business.
- Obtain witness statements from any employees implicated detailing whether they felt threatened, offended or intimidated as a result of the comments.
- Obtain a witness statement from the owner of any confidential information disclosed, detailing the impact of any disclosure on them
Yet to go in guns blazing and fire that employee could result in an unfair dismissal claim if termination of employment was found to be harsh, unjust and unreasonable, says Ellis.
In a recent unfair dismissal case, an employee was fired for misconduct after voicing dissatisfaction with his supervisor and payments on Facebook.
In O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys[2011] FWA 5311, the employee, who posted "Damian O’Keefe wonders how the f*** work could be so f***ing useless and mess up my pay again. C***s are going down tomorrow", said in his defence that he was extremely "angry" when he wrote the comments and did not intend for his supervisor to see.
Even though the employee’s privacy settings were set to maximum and he did not name his employer, his co-workers spotted the comment and passed it onto his superiors.
The FWC agreed that his comment constituted threatening behaviour and that his employers were justified in sacking him.
In another case, a Centrelink worker who wrote that his clients were “whinging junkies” and “spastics” on a social media forum won his case for unfair dismissal, despite his employer arguing that he has brought the Department into disrepute.
“In this case, there was no evidence that the Department’s reputation was actually damaged or that anyone actually formed an adverse perception of the Department’s impartiality,” Ellis says.
“This is probably largely a result of the fact that Centrelink is not a commercial enterprise reliant on customer loyalty, but was also a product of the “special interest forums” in which the comments whether the comments were a one-off or part of a more sustained campaign.”
However, if the employee had worked for a brand where client loyalty is imperative, his employer could have argued against his reinstatement by providing evidence that his comments had a detrimental effect on the employer’s business, Ellis says.