Social media and employee’s conduct online has without doubt added a layer to the employer and employee relationship. While employees may think that their online activities done outside of work hours may be private, their conduct online may become relevant to their employment, for example, where it may disparage their employer, other employees or clients.
In Besanko v R.B. Aquatics Pty Ltd T/A Swimmers [2021] FWC 1952, a 19-year-old casual swim instructor was summarily dismissed from her employment after her employer discovered a Facebook post in which she recommended a rival swim school where she also worked.
In a private Facebook group, the employee responded to a post seeking recommendations for swim schools with the name of another swim school where she also worked as a casual swim instructor. After being alerted to the post, the employer raised the post with the employee who denied that she had done anything wrong and or that she intended to cause any damage to the employer.
The employer considered that the employee’s conduct in providing an unsolicited recommendation was unsatisfactory and disloyal, particularly as the employee had been in receipt of JobKeeper payments from her employment with them during the COVID-19 pandemic. The employer summarily dismissed the employee.
The employee lodged an unfair dismissal application with the Fair Work Commission (FWC). The employer raised jurisdictional objections, including that the dismissal was consistent with the Small Business Fair Dismissal Code. The employer submitted that the employee’s conduct was serious misconduct and that it held a genuine belief that the employee’s conduct was serious because the employee’s comment of recommending a competitor had the potential to damage its business.
The FWC considered that the employee’s behaviour was “foolish, naïve and ill-judged” and was a “regrettable example” of the use of social media without considering the consequences. However, the FWC was not satisfied that that the conduct was wilful or deliberate, or that the conduct was so serious that it destroyed the employment relationship and warranted summary dismissal. In particular the FWC noted that:
• The employee did not denigrate her employer in the post;
• There was no evidence that the employer’s business suffered harm or damage;
• The post was made in a private Facebook group and the employee’s profile was on private, so it would not have been apparent that the employee was employed by the employer;
• The duty of fidelity and good faith had not been breached; and
• The employee naively and wrongly believed that because she was employed by both swim schools, her conduct was not inconsistent with her obligations to both employers.
Accordingly, the FWC found that the employee’s dismissal was not consistent with the Code. Having formed this conclusion, it went on to also find that the dismissal was harsh, unjust or unreasonable as there was not a valid reason for dismissal, the employee was not notified of the reason for dismissal and the decision to dismiss had been made before the employee was provided with an opportunity to provide a response.
While the FWC did not consider that the employee should have been summarily dismissed, it did consider that the conduct warranted criticism and disciplinary action.
Generally, employers will not have an interest in the online activities of employees outside of work hours. However, employees conduct online could become relevant to their employment where it may breach the employment duties owed to employers. The Courts have recognised that employees conduct on social media can have an impact on the employment relationship and employees have to be aware that their social media conduct could affect their employment.
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