Two recent decisions of Fair Work Australia have provided further scrutiny about the use of Facebook by employees regarding their workplace.
In the first case, a retail sales clerk used Facebook to vent his frustrations about problems the employee had been experiencing with the payroll department paying him incorrectly.
He posted a message from his home computer on Facebook about ‘how the *** work can be so ***ing useless and mess up my pay again. *** are going down tomorrow.’ The message was posted after usual work hours.
The employer considered that the Facebook message had threatened the safety of a female staff member responsible for the employee’s pay particularly as the employee had been in email contact with his female counterpart for some time before the Facebook posting. The employee was then terminated on the grounds of serious misconduct and paid three weeks' pay in lieu of notice.
Before Fair Work Australia, the employee argued that the termination was unfair as his Facebook page was set to maximum privacy settings. He was however ‘friends’ with 11 other work colleagues who had the capacity to read the Facebook comment.
Fair Work Australia upheld the dismissal noting that prima facie, threatening another staff member was a serious issue that should not be tolerated. Fair Work Australia also held that the manner in which a threat is made is irrelevant and the fact that the comments had been made on the employee’s home computer outside of work hours, did not make a difference.
The second case dealt with a Fair Work Australia Full Bench appeal by an employer against a decision determining that the employee had been unfairly dismissed.
The employee, a hairdresser, had on a number of occasions been warned about her punctuality. She was issued a formal written warning on the day before Christmas. About the same time, the employee received her ‘Christmas bonus’, which was less than she had expected.
This employee also turned to Facebook to vent her frustrations. She posted on her Facebook page ‘Xmas 'bonus' alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]’. The employee was terminated shortly thereafter because of her ‘public display of dissatisfaction’ with her workplace.
The Full Bench agreed that the dismissal was unfair because the employee had not named the salon, the salon’s information was not readily available on the employee’s Facebook page and there was no evidence that the five to ten clients who were the employee’s ‘friends’ had read her comments. The Full Bench also said that the employee’s comments were ‘sarcastic rather than aggressive’.
These decisions emphasise that the cyberspace, whether it be accessed by Facebook, Twitter or any other social medium is part of the workplace over which an employer is entitled to exercise control. That control extends past the actual workplace and traditional work hours. Employers need to implement social media policies which regulate the conduct of employees who may potentially be critical, offensive or threatening towards their work colleagues or the workplace generally.
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