Overview of the facts

The worker was employed by the business for almost 15 years when she was dismissed after the business became aware of a Facebook post she published when she was angry. The Facebook post included comments such as “I use to love my job” [sic] and “They don’t care for clients, they don’t care for their staff…. Really really sad”. The business formed the view the comments attacked the business and a disciplinary meeting was held. At the time the worker was in receipt of workers compensation payments for a psychological injury she suffered earlier in the year. The worker had no capacity for work and stated many times she would not be returning to work. The business dismissed the worker for serious misconduct due to the breach to the social media policy. The worker filed an unfair dismissal claim in response.

The decision

The Commission found there was a valid reason for the dismissal. The worker conceded the post was constructed by her and was in breach of her obligations as an employee. The Commission found the post was sufficiently connected to work given it became the topic of conversation amongst other workers of the business and a client of the company.

When assessing the procedural fairness of the termination, the Commission can consider all relevant factors of the case. In this case this included the workers length of service, her psychological injury and her clean employment history. The business was aware the worker had been diagnosed with an “adjustment disorder” as advised by medical reports. The Commission found that while this did not excuse the behaviour it went some way to explain it. Therefore the business failed to sufficiently account for the workers’ health at the time of making the Facebook post. Similarly the post itself did not result in any financial harm to the company. On balance, the Commission found termination was a disproportionate response to the misconduct, and as such, held it to be an unfair dismissal.

The Commission ruled no compensation was payable and that reinstatement was inappropriate. The Commission considered it unlikely the worker would have returned to work even if they had not been dismissed. This was because of her being unfit for work, stating multiple times that she was not coming back and having organised two farewell cards for her departure. The Commission also noted after the end of her employment the worker had sent intimidating and harassing emails to the business. This misconduct along with the medical condition and no resulting financial loss to the worker led to the Commission declining to order any remedy.

Lessons for employers

Social media policies are important documents to outline business expectations for online behaviour. When following disciplinary action for policy breaches, the business should consider whether there is a sufficient link between the content and the business, any financial or otherwise harm experienced by the business due to the online content, who was responsible for the content and the nature of it. The Commission does have the discretion to consider any other factors they deem relevant in assessing whether a termination was unfair as seen in this case this includes medical conditions, length of service and prior employment history.

How we can assist

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Stephanie Beckett, Senior Workplace Relations Advice Line Advisor

[2019] FWC 5622