UNFAIR DISMISSAL: WHY CO WORKERS SHOULDN’T BE FACEBOOK FRIENDS

Kate Ausden Blog

An employee sacked for an angry Facebook rant about her employer managed to satisfy the Fair Work Commission that the dismissal was harsh.

The employee:

  1. was employed by a security and monitoring company (“the Employer”);
  2. had been employed for 15 years;
  3. had not been the subject of any prior disciplinary outcome;
  4. had a depressive illness, caused by work, which was compensable under workers compensable legislation;
  5. had been advised by her treating medical practitioner not to attend work because of the depressive illness from which she was suffering.

The Employer had a social media policy (“the Policy”).  

The Policy required employees to refrain from posting inappropriate material “which included material that was intended (or could possibly) cause insult, offence, intimidation or humiliation to the Company… or is defamatory and could adversely affect the image, reputation, viability or profitability of the Company.”  The Policy noted that a breach may result in termination of employment.

In or around 2017, the employee had been emailed a copy of the employer’s policy and procedure manual, which included the Policy.  There was no evidence that the employee had viewed or signed the Policy.

The employee had become increasingly annoyed at her Employer for, among other things, its alleged failure in supporting employees after the death of a co-worker.  

The employee, on the very day she had been advised by an independent psychiatrist she could not return to work because “it would be too toxic environment”, decided to attack her employer on Facebook (“the Post”).  

The Post was limited to her Facebook friends only (so members of the public could not view her post). Having said that, it appears as if at least 3 Facebook friends were employed by the same Employer.  The Post said:

The Post, not unsurprisingly, came to the Employer’s attention.

Following a brief and heated disciplinary meeting, in which the employee was allegedly “negative and standoffish”, the Employer decided to terminate her employment summarily.

While ultimately Commissioner Platt did find that there was a valid reason for the employee’s dismissal, he did not believe the sanction of dismissal was a proportionate outcome because:

  1. the employee’s length of service;
  2. the employer’s failure to take into account the impact of her medical condition at the time it determined to dismiss her;
  3. the lack of any previous performance issues; and
  4. the Post was a single event and did not result in any financial harm.

Commissioner Platt found that the dismissal was otherwise harsh.

Interestingly, while Commissioner Platt considered compensation (rather than reinstatement as an adequate remedy) he came to the following conclusion:

“In all the circumstances, I do not consider the payment of compensation is appropriate because of my view that Ms Murkitt would not have continued to work for Alarmnet if she had not been dismissed, the workers compensation payments received and her misconduct.  I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed.”

The Employer has appealed this decision.