Summary

The Fair Work Commission has found that, while an employer had a valid reason to dismiss an employee who posted derogatory comments on Facebook about her employer, the dismissal was harsh and disproportionate when the surrounding circumstances were taken into account.

 

 

For employers

• Inappropriate use of social media does not automatically justify termination of employment.
• Ensure you have a social media policy in place that sets out expectations for employee conduct online and consequences for breach
• As in all dismissals, ensure there is a valid reason for dismissal and that you follow a fair and reasonable process

In a recent case heard by the Fair Work Commission, an employer was found to have unfairly dismissed a long-term employee who criticised the company and its practices in a Facebook post.[1]

The employee, Ms Murkitt, had been working for Alarmnet for almost 15 years. At the end of November 2018 a close work colleague of Ms Murkitt was killed on his way home from work.  Ms Murkitt’s evidence was that she felt that the new owners of Alarmnet did not adequately support her following the death of her colleague, and she subsequently made a successful workers compensation claim, having been absent from work from 5 December 2018.

Ms Murkitt claimed that on 26 February 2019 she was advised by an independent psychiatrist that she would not be able to return to the workplace due to the “toxic environment”, and that it was while she was in a state of “anger” about this news that she took to Facebook to vent her anger and discontent with the treatment by her employer, posting as follows:

In his decision, Commissioner Platt found that there was a valid reason for Ms Murkitt’s dismissal, given that Alarmnet had issued a social media policy and that the Facebook post was a breach of the employee’s contractual obligation “…not to intentionally do anything that is or may be harmful to the Company”.

However, in considering whether the dismissal was harsh, unjust or unreasonable, the Commissioner took into account a number of factors, including:

Ms Murkitt had not had any prior disciplinary matters in her almost 15 years of employment

Ms Murkitt was suffering from a psychological condition at the time she made the Facebook post and at the disciplinary meeting, and the employer was aware of this

The Facebook post was a single event and did not cause any financial harm to the employer (although it did cause disharmony in the workplace)

 

In finding the dismissal was harsh, Commissioner Platt stated, “ In my view, the sanction of dismissal in the light of Ms Murkitt’s medical condition, length of service, the lack of any previous performance issues, was not a proportionate outcome.”

Despite this finding, no compensation was ordered after the Commissioner formed the view that Ms Murkitt would not have continued to work for Alarmnet in any event, based on the circumstances and Ms Murkitt’s own evidence.

[1] Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring (U2019/2978) [2019] FWC 5622 (16 August 2019)