Can you be sacked for your Facebook comments?
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Can you be sacked for your Facebook comments?

Can you be sacked for your Facebook comments?

In today’s society, employees are connected in many ways. Not only do they work together but if they are friends on Facebook or connected via LinkedIn, then activities outside of business hours are also visible and can be shared. Therefore, the boundaries between work and private life have become increasingly blurred. Employees should keep in mind how their posts, comments, likes or tweets could affect the relationship they share with their co-workers and potentially negatively impact their employer’s reputation.

Just because an employee is at home when the conduct occurs doesn’t mean action cannot be taken. Claims of bullying and harassment via social media are on the rise and it’s not an issue the FWC takes lightly. In some situations, a person’s employment may be in jeopardy where there is a sufficient connection between alleged misconduct over social media and their employment.

In a recent case heard by the FWC[1], it was found that the decision to sack a worker for making disparaging comments about his supervisor on a Facebook post, alongside fellow employees, was a valid reason for dismissal (although the dismissal was ultimately found to be unfair due to procedural issues).

The employee made the unfair dismissal claim based on the following:

  1. that he was not at work when he posted the comments on Facebook,
  2. that his comments were not directed towards the supervisor, and
  3. that he was unaware of the company’s social media policy.

These arguments were rejected by the FWC, which found that the employee’s comments were made to belittle and ridicule his supervisor, that he had a blatant disregard towards his prior final warning and that he had breached the company policy. As a result the FWC found that there was a valid reason for dismissal.

However, despite the employee’s ongoing inappropriate behaviour, the dismissal was deemed unfair as he did not receive a copy of the confidential report from the investigation leading to his termination. The employee argued that the report was highly relevant in the company’s decision to dismiss him, and by failing to provide a copy the employee was not properly notified of the reason for his dismissal nor was he given an opportunity to fully respond. This case affirms that whilst an inappropriate Facebook comment can (at times) be sufficient misconduct to warrant dismissal, employers must still afford procedural fairness.

The misuse of social media can create animosity and conflict within the workplace. This is especially the case when online behavior becomes nasty or inappropriate. Typically, bullying and harassment over social media can include:

  • Posting rude, abusive or hurtful comments
  • Distributing or sharing offensive or explicit material
  • Excluding a co-worker from an all co-worker group
  • Unfriending a co-worker
  • Unwanted sexual advances

The emergence of new platforms such as Snapchat[2] (which allows users to send content between one another that vanishes within a matter of seconds), means that it can be challenging for employers to keep up to date about where content is being published, and to obtain proof that misconduct has occurred.

Lessons for Employers

  • Implement a Social Media policy that outlines your expectations of acceptable social media use. Ensure your policy is well-drafted, regularly reviewed and communicated to your employees.
  • Cross-reference your Social Media policy with other company policies (e.g. bullying, harassment, discrimination etc.) to ensure employees are fully informed about your expectations.
  • Remain vigilant on the interactions between staff, keeping in mind your workplace culture and appropriate standards of behaviour.
  • Where misconduct has occurred ensure the investigation, and any disciplinary action that follows, are handled with procedural fairness.

 

 

[1] Clint Remmert v Broken Hill Operations Pty Ltd T/A Rasp Mine [2016] FWC 6036 (10 October 2016)

[2] Snapchat in the workplace: where’s it app? Blog post by Justine Turnbull and Shomaice Zowghi, Seyfarth Shaw, September 21, 2016