Workplace issues with Facebook

Facebook has fast become another medium through which employees express their displeasure with the workplace. Generally speaking, the derogatory comments posted by employees on the social networking sites are made outside of working hours. This presents a problem because once again, we enter the blurry divide between private and public and the ability employers have to discipline employees for behaviour conducted outside of working hours.

The concern of employees conducting themselves unacceptably outside of work is not new. In the case of Rose v Telstra it was established that behaviour outside of work can lead to a dismissal if the conduct could be regarded as a breach of an employment contract. The behaviour itself must have a relevant connection to the employment and be conduct that is likely to cause damage to the employer or damage to the relationship between the employer and employee. This coincides with the general duties an employee has of trust and confidence towards his or her employer.

A Facebook posting could therefore fall within the principle in Rose v Telstra. The message to employers is that a derogatory Facebook comment about the workplace is not an immediate reason for dismissal. Factors such as the harshness of the comment; whether people are named and the level of exposure are all relevant considerations.

A recent example is provided in the case of Miss Sally-Ann Fitzgerald v Dianna Smith T/A Escape Hair Design where an employee hairdresser posted the following comment on her Facebook page:

“Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!”

Fair Work Australia observed that it was a “foolish outburst” which whilst serving to undermine the employer’s trust and confidence in the employee had not otherwise damaged the employer’s business. FWA held that the dismissal was unfair and fell short of providing a valid reason for termination.

Key Points: Employers should take caution when presented with a case of social network shaming and consider all factors prior to dismissing an employee.