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The rise of social media issues in employment...
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16 | HIRE
AND
RENTAL
NEWS
| NOVEMBER 2012
INDUSTRY IN FOCUS
subsequent termination to be unfair dismissal, taking into account the
employee’s extremely good employment record over some 22 years, his
age and his employment prospects.
Fitzgerald v Smith
5
: Employee posted on her Facebook status “Xmas
‘bonus’ alongside a job warning, followed by no holiday pay!!!
Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!”
FWA found subsequent termination to be unfair dismissal, taking into
account the employee’s changed conduct after the employer notified
her of the problems.
Social media has also been adopted by employers (and lawyers
alike) as a rich medium of evidence gathering to be used against
misconducting employees. Cases include:
Dekort v Johns River Tavern
6
: Employee applied for sick leave early in
the new year of 2010. The employee was dismissed after his boss found
a photograph from a Facebook page showing the employee participat-
ing in New Year’s Eve Celebrations. FWA dismissed the
employee’s unfair dismissal application on the basis the application has
no prospect of success.
Do privacy settings protect the employee?
Courts have held social media interaction is not private interaction
and privacy settings do not provide users legal protection against
employer action.
In Fitzgerald v Smith, Commissioner Bissett stated: “What might
previously have been a grumble about their employer over a coffee
or drinks with friends has turned into a posting on a website that, in
some cases, may be seen by an unlimited number of people. Posting
comments about an employer on a website (Facebook) that can be
seen by an uncontrollable number of people is no longer a private
matter but a public comment.”
What constitutes misconduct through Social Media misuse?
Based on Court decisions to date, the question of misconduct and
whether dismissal is unfair depends on the specific facts of the case.
Additional factors, not relating to the actual social media misuse,
may affect the outcome of a dispute, such as: the employer’s actions
subsequent to discovering the misconduct; the employee’s record
of service; the nature of the employee’s complaint; whether the
disciplinary measure taken by the employer is proportionate to the
misconduct; and whether the employer has communicated its social
media policy to the employee.
As further food for thought, the following areas of laws may be
directly relevant to social media use:
• OHS laws (employer failing to investigate cyber bullying);
• unfair dismissal laws (termination of employment that is harsh,
unjust or unreasonable);
• general protections laws (adverse treatment of an employee because
the employee has made a complaint over a social media platform
regarding a workplace right);
• equal employment opportunity and anti-discrimination laws
(employer discriminating against potential employee or existing
employees based on social media content);
• defamation laws (current or ex-employees defaming the employer
through social media publications); and
• advertising codes of conduct and practices (employers failing to
monitor their own social media publications for unlawful content).
It is strongly recommended employers obtain legal advice through
HRnet on 1800 474 247 before acting on social media misuse by
employees.
For more contact: 03 8540 0228 or visit: www.mst.com.au
HR
5
Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358.
6
Dekort v Johns River Tavern T/A Blacksmiths Inn Tavern [2010] FWA 3389.
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