A recent case of the Fair Work Commission provides some useful insight into the use of social media and its potential impact on the employment relationship.
The Applicant in this case (Mr Barry Harvey) was employed by the company in question as an Environment, Safety and Quality Manager. After approximately 11 months of service, the company terminated his employment for a range of performance and conduct issues, which included a refusal to report for duty, a failure to perform duties, a lack of responsiveness to internal clients and staff, a failure to follow a reasonable direction from his manager (Mr Cain) and lack of respect and use of inappropriate language directed at Mr Cain.
Mr Harvey subsequently brought an unfair dismissal claim, arguing that he had not been informed in any detail as to the reason for his dismissal, and was not given an opportunity to reply. Mr Harvey resisted the performance and conduct issues that had been raised by the company, and claimed that he had been bullied by Mr Cain.
The company provided evidence as to the history of Mr Harvey’s performance and conduct issues. Amongst several other things, the company adduced evidence to show that Mr Harvey had used his LinkedIn account to send threatening emails to a person who may have been his ex-partner. These emails made specific reference to Mr Harvey’s position at the company, and the name of his employer.
Unfair dismissal claim dismissed
Senior Deputy President Richards dismissed the unfair dismissal claim, and held the following (amongst other things):
- SDP Richards held that there was a valid reason for the dismissal, accepting much of the evidence put forward by the company. In particular, it was held that Mr Harvey showed no serious intention of responding positively to concerns that had been communicated to him about his performance and conduct, and remained defensive and aggressive. It was accepted that Mr Harvey was unable to conduct himself professionally, refused to participate in performance management processes and attempted to dictate the terms on which he would perform his work.
- On the other hand, SDP Richards accepted that Mr Harvey had not been expressly informed of the reasons for his dismissal prior to the termination taking effect. This was in circumstances where the detailed reasons for the dismissal were only notified to Mr Harvey in the letter that confirmed the termination of his employment.
- Because of point (2) above, Mr Harvey did not have an opportunity to respond to the reasons set out in the termination letter. It was accepted however that the reasons for the dismissal should not have come as a surprise given that there had been lengthy discussions about a range of matters during Mr Harvey’s employment.
- Mr Harvey was given ample opportunity to address the company’s concerns about his performance.
Of interest, SDP Richards made specific reference to the LinkedIn email that had been sent by Mr Harvey which was held to ‘reflect poorly on [Mr Harvey’s] judgement’. SDP Richards held that even though the email was sent from Mr Harvey’s personal email account, it essentially ‘advertised’ Mr Harvey’s role as an employee of the company, and expressly referred to his position and the company’s brand. Mr Harvey was described as being ‘profoundly naïve’ to have included this information in an offensive email, and he should have been ‘sufficiently conscious of the need to preserve the good name and reputation of his employer’.
Given the ever diminishing divide between the professional and personal lives of employees, this is a useful finding for employers who are increasingly affected by the actions of employees whilst using social media in a personal capacity.
To further bolster the ability to rely on social media activities, employers should consider implementing a social media policy which outlines the circumstances in which social media activities may impact on the employment relationship.
This article was written by Lauren Barel, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.