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When you CAN'T dismiss an employee
comments made via social media - Part 2
Friday, 7th February, 2014
By Jessica Oldfield
In today's Workplace Bulletin:
- An easy way to manage your own super
- Case study: Fired for a Facebook comment – Part 2
In Wednesday's Bulletin, Charles Power told us about a recent case in which an employee was dismissed for comments she made via Facebook private messages. The employee lodged an unfair dismissal case and won. Today, Charles will explain a little more about the ruling.
But before we get to today's article, I just wanted to take a moment to let you know about something that may be of interest to you…
Finally – an easy way to manage your own super
The popularity of self-managed super funds (SMSFs) has been skyrocketing of late – and it's little wonder…
With an SMSF, you get to decide when, how and where your retirement money is invested, not to mention make all the crucial decisions that affect your financial future.
But knowing exactly how to go about starting an SMSF can be a daunting task...
For starters, how do you set it up? What about all the duties you will have as a trustee? And how will you stay up-to-date with any changes to the law that affect your role?
If you're considering setting up an SMSF and don't know where to start – or you already have one but you're concerned about how you'll stay on top of your responsibilities – there is now a simple, cost effective solution...
Have a great weekend!
you manage family issues in your workplace, including:
Case study: Fired for a Facebook comment
Editor-in-Chief, Employment Law Practical Handbook
In Judith Wilkinson-Reed v Launtoy Pty Ltd trading as Launceston Toyota (2014), the Fair Work Commission (FWC) considered the fact the employee who had been dismissed for postings she had made on Facebook had a low opinion of the business owner. The FWC considered that this did not make her employment untenable to justify her dismissal. In any event, the employee was merely passing on another employee's comment.
Should the employee have raised with the owner the disgruntlement among staff? Was the employee's failure to do so a breach of her duty to the owner as the HR Manager? The FWC did not think so because the employee who was slighted had clearly indicated that she did not want the matter taken any further, and the staff who had spoken to her about the staff survey were senior managers whom she believed were capable of raising their own concerns with the owner.
The FWC ruled that the comments made by the employee were in a private conversation and were not made in public or to employees or customers. They occurred between good friends who believed that they were participating in a private conversation through their respective Facebook accounts. The comments were not made as a post on a Facebook ‘wall' that was then accessible to the ‘Friends' of either party, or as a tweet visible to many followers.
Neither party made intended for the conversation to be in the public domain and open for scrutiny and comment.
There was no evidence of any concern about the employee's interactions with the owner at the workplace or any evidence that the employee had in any way attempted to denigrate the owner to any person other than his wife.
The Commissioner stated:
"I do not think discovery by a manager that an employee holds a low opinion of him is sufficient reason to terminate the employment of a long serving employee with an impeccable employment record. In my view more is required, particularly some evidence that the employee's opinion is having a deleterious effect on the workplace, its employees or the business of the employer."
The Commissioner determined the employee did not breach the employer's social media policy, observing:
"While the Facebook conversation may have been conducted by means of social media it was in the manner of a private email. It is unlikely that a policy that was an attempt by an employer to control the contents of private emails between their employees third parties, written in their own time and using their own equipment would be found to have the requisite connection to the employment relationship such that an employee could be terminated for a breach."
Note: The employer is appealing the decision.
Employment Law Practical Handbook
Employment Law Practical Handbook
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