Social media use: When is it a valid reason for dismissal?
HLS LEGAL | July 14, 2024
By Stephanie Oliver
A recent decision in the Fair Work Commission (FWC) has highlighted that “bad mouthing” other staff (particularly managers) in a “private group chat” can be a valid reason for dismissal.
What happened?
Following a meeting on 31 October 2023 which had reinforced that an employee’s focus, as a Bar Supervisor, should be on improved customer service standards, quality of service, following protocol and procedures and being seen as “one team” supporting management decisions, the employee “posted” on a Facebook group chat criticising the management of her employer.
The employer spoke to the employee about “appropriate social media use” but despite this, she continued to use social media platforms to vent her opinions about management.
On 9 November 2023, the employee removed “managerial” employees from a “Staff Group Chat” on WhatsApp and then made various comments in that chat which, according to the employer, could have incited bad behaviour and negativity towards leadership and management from other employees.
On 10 November 2023, after it was explained to the employee that her conduct on social media chats as well as the exclusion of the managers from the Staff Group Chat, was inappropriate, the employer made the decision to terminate her employment.
The FWC held that the employee’s “…involvement in a group chat that ha[d] fostered negative comments about the management team, thereby creating a divisive atmosphere between the Front of House and the Management team” was a valid reason for termination.
The FWC also commented that the group chat clearly related to working at the employer and that it could not be described as a “private group chat”, as had been contended by the employee.
What does this mean for employers?
In our opinion, the decision means that employers may be able to (depending on the circumstances) terminate an employee that is using an “external” channel to communicate about work, if those communications are inappropriate. Therefore, employers will not have to tolerate “bad behaviour” by an employee, even if it is done via non-traditional means i.e., social media.
However, employers should still exercise caution if terminating an employee for inappropriate behaviour on social media, as the FWC reinstated an employee last year for similar conduct.
In that decision, the FWC held that an “occasional post about a work situation” when approximately 40% of the participants in the group were not employees, did not create a sufficient connection to the workplace to sustain an argument that the group was “work-related”. The FWC also found that, in the context of the employees regularly “having a humorous shot” at one another, a post regarding another employee was found to be “funny” and did not warrant the termination of the employee’s employment.
