Minding your P’s & Q’s - what social media conduct justifies dismissal?
Posted on December 07, 2017
Differing decisions of the Fair Work Commission (FWC) demonstrate that employers must walk a fine line in determining whether an employee’s misconduct on social media is sufficient to justify dismissal. We consider two recent cases below.
Somogyi v LED Technologies Pty Ltd [2017] FWC 1966
In this case, Mr Somogyi was employed as a sales representative for LED Technologies Pty Ltd (LED Technologies) from 13 July 2015. On 24 August 2016 Mr Somogyi posted on his Facebook page a statement that included the following:
“I don’t have time for people’s arrogance …. how much of the bosses c*** did you suck”
Later that day, Mr Somogyi was dismissed via telephone. Mr Somogyi was not provided with a reason for dismissal at the time.
Mr Somogyi subsequently filed an unfair dismissal application. In the employer’s response to the application, LED Technologies stated that Mr Somogyi was dismissed given the offensive nature of the post, and the fact that it was posted while Mr Somogyi was at work.
LED Technologies claimed that Mr Somogyi had been previously given five written warnings about the use of social media during work hours. LED Technologies also presented to the FWC extracts from a Social Media policy, which stated, “LED Technologies will monitor social media usage at work” and “Usage of social media at work found to be improper or time wasting will result in disciplinary action”.
Mr Somogyi submitted:
- His post referred to his mother's boss and not his employer;
- He was not given the policy on use of social media; and
- He did not receive written warnings in relation to the conduct.
Although the FWC described the post as “crude” and “immature”, the FWC ruled the dismissal was unfair and awarded Mr Somogyi $6,931 in compensation.
In reaching this conclusion, the FWC held:
- LED Technologies had not investigated the misconduct before the decision to terminate Mr Somogyi’s employment was made;
- there was no satisfactory evidence to establish that Mr Somogyi had been aware of, or had formal training in relation to, the social media policy;
- while the post was made during work hours, Mr Somogyi’s working hours were flexible and it may well have been posted during a break he was entitled to take;
- the post was not directed at the employer, its employees, or customers;
- the employee was only informed of the reason for his termination after he filed an unfair dismissal claim; and
- Mr Somogyi was given little opportunity to provide any explanation or response to the reasons for termination.
Stephen Campbell v Qube Ports Pty Ltd t/a Qube Ports & Bulk [2017] FWC 1211
In this case, Mr Campbell was given previous written warnings for attending work with medication in his system without reporting this to management. On 8 March 2016, Mr Campbell was issued with a final warning for inappropriate Facebook posts from 10 February 2016, in which he described Qube’s chairman as a ‘pig’ and was otherwise derogatory of his supervisors. Finally, on 11 October 2016 Qube dismissed Mr Campbell for misconduct.
The FWC found that “…the termination of Mr. Campbell’s employment was not harsh, unjust, or unreasonable”.
In reaching this decision, the FWC determined:
- The reasons for termination were valid;
- Qube's social media policy required employees to be polite and respectful in all communications and not to damage Qube’s reputation;
- Mr Campbell was notified of all reasons for termination and was given an opportunity to respond; and
- Mr Campbell had received training in the Social Media policy.
The FWC stated that:
“There are decisions where offensive or potentially offensive Facebook posts constitute a valid reason for termination of employment in the circumstances … and decisions where they do not …
In this case, the Facebook post was directed at the chairman of Qube, and was shared by a number of employees of Qube…I do not need to determine if it was a valid reason for termination of employment. I would however have come to that conclusion in the circumstances. It is a serious matter for an employee to publicly or semi-publicly call the chairman of the company a ‘pig’, which is a rude and derogatory term carrying with it some contempt and hostility”.
Take home lessons
What social media conduct is worthy of dismissal remains unsettled and will depend on the facts and circumstances of each case. Therefore, employers should:
- Have in place a written Social Media Policy clearly setting out the employer’s expectations with respect to the use of Social Media by their employees;
- train their employees on the Social Media Policy;
- consistently enforce the social media policy;
- always give employees an adequate opportunity to respond to any allegation of wrongdoing; and
- seek legal advice to determine whether a social media post will amount to “serious misconduct” worthy of summary dismissal.
