18 Feb 2016

Social media misconduct and the right to reinstatement

by Michael Byrnes, Jacqui Ellis

Misconduct on social media might not justify dismissal, but it can prevent an employee's reinstatement.

Since the rise of popular social media sites, such as Facebook, Instagram and Twitter, the Fair Work Commission has increasingly been asked to consider issues raised by social media and, in turn, claims for unfair dismissal resulting from online but out-of-office conduct. This trend shows no signs of abating in 2016.

While the Fair Work Commission has previously found that derogatory, discriminatory or offensive comments made about other employees or an employee's workplace can provide a valid basis for dismissal, this will not always be the case. Whether or not termination is warranted will depend upon the particular facts and circumstances of the case.

An associated issue is the role conduct on social media can have in determining the remedy to be applied even where a dismissal is determined to be unfair. Even though an employee might win the unfair dismissal battle, they can lose the remedy war and deny themselves reinstatement by irreparably damaging the relationship with their employer by their comments on social media.

Anders: workplace relationship can't be repaired

In the recent decision of Mary-Jane Anders v The Hutchins School [2016] FWC 241, the Fair Work Commission was asked to consider whether an employer had valid reasons for terminating an employee who had, in addition to other alleged misbehaviour, posted derogatory comments on Facebook about her employer and an unresolved workplace dispute.

Mary-Jane Anders had worked with the Hutchins School since 1 January 2001. In 2013 she was removed from one of her senior roles, which triggered an industrial dispute, and was then diagnosed with depression and anxiety (for which she took long service leave).

Upset by being removed from teaching a subject she had always taught while on leave, Mrs Anders posted disgruntled messages about her employer on her Facebook wall. Her privacy settings were restricted to her friends and Hutchins was not listed as her employer, nor named in her posts. Nonetheless, a number of staff who were Facebook friends of Mrs Anders would have understood the comments to be in relation to the industrial dispute at the workplace. They came to Hutchins' attention, which instructed her to refrain from posting harmful or derogatory comments on her Facebook page.

Mrs Anders faced a further personal challenge in 2014 when her husband became critically ill. This led to a disability discrimination claim, allegations about her behaviour from other staff, and performance management. She was then dismissed on the basis that Hutchins had lost trust and confidence in her.

Mrs Anders subsequently commenced unfair dismissal proceedings in the Fair Work Commission, seeking reinstatement pursuant to section 394 of the Fair Work Act 2009 (Cth).

The Fair Work Commission concluded that Hutchins had not presented sufficient evidence that it had a valid reason to terminate her employment, had not investigated the allegations properly, or managed disputes in the workplace. Given her personal circumstances and long service, DP Wells concluded that the dismissal was harsh and disproportionate.

Nonetheless, it refused Mrs Anders' application for reinstatement on the basis that it would be "impracticable and would affect the continued functioning and harmony of the enterprise… there is no ability to re-establish a collegial working relationship in the maths faculty". Mrs Anders was instead awarded compensation.

Marroun: you're a bastard and a criminal, now take me back

Another case that illustrates the impact derogatory comments on social media by an employee can have on reinstatement is Marroun v State Transit Authority [2016] NSWIRComm 1003.

In the Marroun case, a disgruntled former employee posted two comments on his Facebook page calling his employer a "bastart" (sic) and a "criminal". These comments appeared two months after the employee's dismissal, and remained visible on the employee's Facebook page for a number of months.

The NSW Industrial Relations Commission refused the employee's appeal against termination, but said that even if this conclusion were wrong, reinstatement would not be an appropriate remedy, because of these posts.

Commissioner Newall acknowledged that "stresses and strains" can appear in the employment relationship, but that asking an employer to put trust and confidence in an employee that had "publicly characterised that employer as a bastard and criminal" was not "within the maximum elasticity of the employment contract".

Key lesson: Sounding off on social media can kill right to reinstatement

The recent decisions of the Fair Work Commission in Anders and Marroun are both clear indicators that misconduct on social media can, and will, be taken into account when determining if reinstatement is an appropriate remedy.

When dealing with social media misconduct and workplace disputes, it is imperative that employers take appropriate disciplinary steps to deal with such issues efficiently, appropriately and fairly in accordance with relevant policies and procedures. Likewise, employees should proceed with caution when engaging with social media, and avoid posting any comments that may be deemed defamatory or derogatory of their employer. If they don't, even a wrongfully dismissed employee might still be looking for a new job.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.