Facebook blurs the line between Work and Personal Life
19 June 2013
In an increasingly tech savvy society, it is important for both employers and employees to be aware of the danger of using social media, and just how it can impact on the employment relationship.
There have been many recent cases before Fair Work Australia (“FWA”) where the Commissioners have been asked to consider whether Facebook posts by an employee, directed at the employer or another employee gives the employer a right to terminate the employment of the employee in question.
One such case is the case of O’Keefe v Williams Muir’s Pty Limited, which was decided in August 2011.
In this case FWA upheld the termination of an employee based on the following Facebook comment (“post”) by an employee, which was posted in frustration over unresolved payment issues at work:
“Damien O’Keefe wonders how the f..k work can be so f..king useless and mess up my pay again. C..ts are going down tomorrow.”
The Operations Manager, to whom the comment was targeted, was intentionally blocked by the employee from viewing the post, however other employees who were “Facebook friends” of the employee, were not.
The comment and the fact that other employees were able to see the comment was held to link the conduct to work. The fact that the comment was made on the employee’s home computer, out of work hours, or that the employee did not mention the employer’s name, was irrelevant. The comment was held to amount to serious misconduct and was repudiatory of the employment contract.
Although the employer’s policies in relation to unacceptable conduct did not specifically refer to Facebook communications, FWA held that common sense dictated that such conduct is unacceptable, and further, that it was reasonable for the employer to have lost all confidence in the employee as a consequence of the post, and the manner in which the employee subsequently handled the incident.
Yet again, Facebook is shown to be a dangerous tool for communication if used carelessly or inappropriately. It demonstrates why employees should be cautious as to the information they post and, who has access to that information. It also demonstrates that employers should be aware that employees may be breaching policies or their employment contract even if the conduct in question occurred outside of work hours and outside of the office.
As it is difficult to monitor employee conduct out of work hours, employers should consider incorporating references to Facebook communications into their policies. If a comment is made on Facebook with respect to work or to another employee, it is reasonable for the employer or an employee to become aware of the communication, and it is reasonable for the employer to lose confidence in the employment relationship. In those circumstances the employer may have good grounds to terminate the employment of the employee.
As always, each case will depend on its facts. If you have concerns that an employee may be using Facebook inappropriately, and are considering what action if any to take, then it is best to seek legal advice.
To be referred to the case on which this article is based, please click on the below link:
O’Keefe v Williams Muir’s Pty Limited T/A troy Williams The Good Guys [2011] FWA 5211