Facebook and Employees: When a Joke Goes Too Far

6 March 2014

In the case of Cameron Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642, the Fair Work Commission found that an employee who placed inappropriate posts about another employee on Facebook was guilty of serious misconduct, and had repudiated his employment contract.

The employee, was employed as a debt collector for Credit Corp Group and had been sufficiently trained in the company’s social media policies. These policies made it clear that employees should not post comments online that could impact on the employment relationship or harm the employer’s reputation, and that inappropriate comments on Facebook could lead to termination of their employment. Despite this, the employee placed a Facebook post on his wall stating “On behalf of all the staff at The Credit Corp Group I would like to welcome our newest victim of butt rape, Jack Hoye. I’m looking forward to sexually harassing you behind the stationary cupboard big boy”.

Credit Corp Group subsequently terminated the employee on the basis that the post constituted serious misconduct and that he had already received a warning for behaviour of a similar kind. Specifically, prior to the Facebook post discussed above, the employee had received a warning from Credit Corp Group in relation to comments he posted on the page of Christians Against Poverty, one of many third parties Credit Corp Group associated with in collecting debt. In the posts, the employee commented “For reals bro, you should put a little more funding into educating consumers on how the world works rather than just weaselling them out of debt, blah blah blah, give a man a fish/teach a man to fish” and “No thanks, just take my advice and try to educate people about things like ‘interest’ and ‘liability’ rather than just weasel them out of contracts, #simple”.

The Fair Work Commission reasoned that although the employee had masked his identity and was not listed on his Facebook page as being an employee of Credit Corp Group, Christians Against Poverty was nonetheless able to establish his identity and who he worked for. The Commission rejected the employee's argument that his remarks regarding sexual harassment were a ‘joke’, that he was unsure of the nature of his security settings and that he did not know people who were not his Facebook friends could see his profile. It said, that as a young person, it was highly implausible that the employee was not aware of how to change his privacy settings.

The Commission stated that although the employee was trained in the Credit Corp Group’s social media policies, commonsense alone should have told him that such a comment regarding a fellow employee would attract serious consequences. Secondly, that the sexual harassment comment was grossly offensive and more than likely to cause hurt and humiliation. Thirdly, that the employee's comments about Christians Against Poverty were likely to adversely impact the relationship between Credit Corp Group and Christians Against Poverty and damage Credit Corp Group’s wider reputation. It therefore ordered that the employee's unfair dismissal application be dismissed.

Lessons:

This case highlights that the line between an employee’s private life and employment can often be blurred, and that an employee can be held responsible for conduct engaged in out of hours on social media. This is particularly the case where the activities of an employee on social media are likely to have an impact on the employment relationship, for example, by having an effect on fellow employees, or where the comments may harm the relationship between the employer and its customers/clients, or may damage its reputation.

This case also highlights the following:

The need for employers to have clear social media policies and training in such policies, so that they can rely on them in the disciplinary process; and
That employers need to conduct a proper disciplinary process before making any decisions to terminate an employee’s employment.