Sacked for recommending a rival swim school on Facebook

What happened

Jasmine Besanko started teaching swimming at Swimmers, a swim school in Melton, Victoria, in December 2017. She was a casual with no written contract. By early 2021 she was 19, studying, and also working casually for Melton Swim School, one of three competitors within 5 kilometres.

When COVID-19 restrictions closed Swimmers from March to November 2020, the business kept her on JobKeeper. By the time she was dismissed, those payments totalled $25,400. She had worked no shifts for the rival school in that time.

In January 2021, someone in a private Melton community Facebook group, which had 16,100 members, asked for a swim school recommendation for two young children. A Swimmers instructor replied recommending Swimmers. Ms Besanko replied with three words: “Melton swim school!” The co-worker saw her reply, screenshotted it and sent it to the manager.

The dismissal

On 12 January 2021 the manager and the owner discussed the post and agreed it justified summary dismissal, meaning dismissal on the spot without notice. The owner later accepted that nothing short of proof that someone else had made the post would have changed his mind.

The manager texted Ms Besanko asking her to come in for a meeting, without saying what it was about. She could not make the times offered, so they spoke by phone on 15 January. She felt blindsided, at first could not recall the post, and said she had not meant to harm the business. She was told her conduct was disloyal and that her employment would end the next day. She asked for a warning instead and was refused.

The termination letter called her conduct “completely unsatisfactory and disloyal”. She applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth).

The small business code

Swimmers argued it was a small business, an employer with fewer than 15 employees, and that it had followed the Small Business Fair Dismissal Code. If a small business complies with the Code, the dismissal is not unfair. The Commission counted the employees and found Swimmers had 13, so the Code applied.

For a summary dismissal, the Code requires two things: the employer must genuinely believe the conduct was serious enough to justify immediate dismissal, and that belief must be based on reasonable grounds. Deputy President Masson accepted the owner genuinely believed she had been disloyal. But he found the belief was not reasonable, because the post was not serious misconduct, which means wilful or deliberate conduct so grave that it strikes at the heart of the employment relationship.

He called her behaviour “foolish, naive and ill-judged”, but gave six reasons why it was not serious misconduct. She did not criticise Swimmers. There was no evidence of harm to the business, or of how many people read the post. Her profile was private, so most readers would not have known where she worked. Nobody suggested she had breached the usual duties of fidelity and good faith, such as misusing confidential information. And she seems to have believed, wrongly, that as a casual at both schools she could recommend either.

Why the dismissal was unfair

Because the Code was not complied with, the Commission went on to the general question of whether the dismissal was harsh, unjust or unreasonable, weighing the matters listed in s 387. The first question is whether there was a valid reason related to the worker’s conduct. There was not: she was 19, had no written contract or policies setting out what was expected of her, and the decision to dismiss was “a disproportionate response to a naïve and ill-advised social media post”.

The process failed too. A worker must be told the reason and given a chance to respond before the decision is made. Here the decision was made on 12 January, three days before the phone call, so her chance to respond “had no practical relevance”. The dismissal was unjust and unreasonable.

Why she received nothing

Ms Besanko did not seek reinstatement, and the Commission considered compensation. It found that, as a casual who had recommended a competitor, she would probably have stayed at Swimmers for no more than another six months, earning about $3,959.50. In fact she had picked up extra shifts at Melton Swim School and earned about $4,225 in the 13 weeks after her dismissal. With no loss of earnings, no compensation was ordered.

What this means for you

For workers, a careless post can still cost you your job and put you through a claim, even if a tribunal later agrees the dismissal went too far. If you work for two competing businesses, keep your recommendations to yourself. And remember that compensation follows your actual loss, so a new job soon after can reduce or wipe it out.

For small employers, the Code is a protection only if it is followed. Disloyalty that annoys you is not automatically serious misconduct, and deciding before you have heard the worker’s side undermines the whole process. The Commission noted that Swimmers had no written policies or contract setting out what it expected of her; clear written rules on social media and on working for competitors may have helped. A Fair Work unfair dismissal application must be lodged within 21 days of the dismissal taking effect.