In this day and age social media is ubiquitous. In recent times, the courts have had to deal with social media’s influence, particularly in the workplace.
One difficult topic that both employers and the courts have had to deal with is employees posting on social media, both during and outside of work hours. What can employees post on social media? Where do employers draw the line as to what their employees can post on social media at work, and relating to work?
Recently, the Fair Work Commission had to decide when an employee’s social media post was a valid ground for the termination of their employment.
In the case of Somogyi, an employee posted an offensive comment on Facebook that related to management at the employee’s workplace.
The post read ‘I don’t have time for peoples arrogance. And your (sic) not always right. Your position is useless; you don’t do anything all day. How much of the bosses xxxx did you suck to get where you are?’.
The employee was terminated from his employment without any notification of the reason why he was fired. The employee then brought an unfair dismissal claim against his employer.
The employer had a workplace policy relating to social media use, which stated that ‘usage of social media at work deemed to be improper or time wasting will result in disciplinary action. The employee claimed that he had no knowledge of this policy. The employee also said that the offensive post was posted during his lunch break.
The Commission found that although the employees post was offensive, the employer had no valid reason to terminated the employee’s employment. The Commission stated that this was because there was not enough evidence to show that the employee actually did make the post during work hours, and not during his break. The Commission said that the post could have very well been made during the employees break time. In addition to this, the Commission said that there was nothing in the post that indicated that it was directed at any of the employer’s staff.
The fact that the worker was not informed of the social media policy also supported the Commissions finding that the dismissal was unfair. The Commission highlighted that if employers are to have policies it is important that employees are made aware of them.
The fact that the employee was not notified of the reason for his dismissal, and was not given an opportunity to respond to that reason, also formed part of the Commissions finding that the dismissal was unfair. The Commission said that the employee should have been afforded procedural fairness.
The employee was awarded $6,000 in compensation.
The take home lessons from this case are to always make sure that employees are afforded procedural fairness when their employment is terminated. Another lesson is to a make sure that employees are always notified of any policy that effects their employment, and given training in relation to that policy.
If you have any queries, please contact our lawyers at MKI Legal, an employment law firm in Perth.
