FWC finds dismissal for Facebook post unfair

In brief 2 min read

The Fair Work Commission recently decided that while an employee's Facebook post breached her employment contract and her employer's social media policy, her dismissal was harsh because it didn't take into account her medical condition, her length of service and the lack of any previous performance issues.¹

How does it affect you?

• Comprehensive and well-drafted social media policies and similar clauses in employment contracts may not be sufficient to ground dismissal. However, it is desirable and necessary to have a clear social media policy that sets out the reasonable expectations you have about your employees' posts that may affect your reputation or client relationships.
• Employers still need to consider carefully whether dismissal is appropriate in view of the circumstances of any breach and any other relevant factors.

Background

Ms Murkitt was dismissed from her role at Alarmnet due to a Facebook post that was critical of her employer. It included the statements, 'They don't care for clients. They don't care for their staff…really really sad…'.

At the time of the Facebook post, Ms Murkitt was suffering from a medical condition attributable to conduct by her employer, and was absent from work and receiving workers' compensation. In fact, the day she posted on Facebook, she had been advised by a psychiatrist that she wouldn't be able to return to the workplace.

Despite Ms Murkitt's privacy settings, the Facebook post was shared and discussed widely among her colleagues. There was also a suggestion that clients of Alarmnet had viewed the post.

The decision

The FWC ultimately decided that her Facebook post was a valid reason for dismissal because it breached both Ms Murkitt's employment contract and Alarmnet's social media policy.

However, Ms Murkitt had been employed for almost 15 years with the company; hadn't previously been subject to any formal disciplinary action; and, at the time of the post, was suffering from a medical condition that was continuing to impact upon her behaviour after the dismissal. Alarmnet didn't take the impact of the medical condition sufficiently into account. For these reasons, the dismissal was unfair. However, because Ms Murkitt was already receiving workers' compensation and was unable (for health reasons) to resume employment with Alarmnet, neither reinstatement nor compensation was ordered.

Permission has been sought to appeal this decision, so watch this space.