A recent decision in the Western Australian Supreme Court held that a person can be awarded damages on the basis of emotional distress caused by a breach of confidence. The case is a significant decision for privacy law, but is also a reminder that an employee’s conduct outside of work on social media can have consequences in the workplace. Partner, Tim Capelin and Lawyer, Amrita Kumar discuss the implications of the case.

Background

Ms Wilson was employed as a mobile plant operator at the Cloudbreak minesite (Cloudbreak) operated by Fortescue Metals Group. The defendant, Mr Wilson also worked in the same crew at Cloudbreak.

Ms Wilson and Mr Ferguson met each other in May 2011 and entered into a romantic relationship in November 2012. During the course of the relationship Ms Wilson and Mr Ferguson would send each other photographs and videos of a sexual nature. Ms Wilson’s understanding was that there was a relationship of trust, and that these photographs and videos were of a confidential nature and were not to be disclosed to any third person.

On 5 August 2013 Ms Wilson ended the relationship with Mr Ferguson. Mr Ferguson then posted 16 explicit photographs and 2 explicit videos featuring Ms Wilson on his Facebook page. Mr Ferguson had 300 friends on Facebook, and many also worked at Cloudbreak. When Ms Wilson saw the photographs and videos she felt humiliated, distressed and anxious, particularly as she knew that many of her friends and colleagues would see the images.

Ms Wilson was not able to return to work until 30 October 2013 and suffered a loss of wages of $13,404. Mr Ferguson’s employment at Cloudbreak was terminated as a result of the incident.

 Ms Wilson commenced proceedings in the Supreme Court of Western Australia alleging a breach of an equitable obligation of confidence, and was granted an injunction prohibiting further publication of the images, and an amount for equitable compensation of $48,404 which comprised of $13,404 for economic loss, and $35,000 for significant embarrassment, anxiety and distress.

Damages for emotional distress

The decision to award monetary compensation for emotional distress is significant because historically common law damages for emotional distress, as distinct from psychiatric or psychological injury, have only been available in very limited circumstances.

Justice Mitchell considered recent changes in the way that young couples communicate with each other (i.e. through “sexting”), the ease with which these types of communications can now be broadly disseminated, and the distress and embarrassment that would be caused by the dissemination of that information to a broader audience.

In deciding on the award of $35,000 for emotional distress, Justice Mitchell found that Mr Ferguson’s conduct was aggravated as the release of the images was an act of retribution and intended to cause harm to Ms Wilson, and also had regard to the amounts commonly awarded for pain, suffering and loss of amenity in tortious personal injury cases.

Notes for employers

Although a breach of confidence case, the facts in this case are interesting from an employment perspective noting that Mr Ferguson’s employment was terminated as a result of the incident, presumably for serious misconduct, in circumstances where the conduct occurred outside of the workplace, and through social media.

There are very limited circumstances where an employer may validly terminate employment for conduct that occurs outside of work. In Rose v Telstra Corporation Ltd [1998] AIRC 1592 (4 December 1998) Ross VP identified  three  circumstances  where an employment contract may be validly terminated due to an employee’s out of work conduct. These are:

  • the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
  • the conduct damages the employer’s interests; or
  • the conduct is incompatible with the employee’s duty as an employee.

Essentially, there must be a connection between the employee’s conduct outside of work and their employment obligations that it can be said that the out of work behaviour was a breach of either an express or implied term of the contract of employment.

The present case did not address how Cloudbreak determined that the Facebook posts were connected to Mr Ferguson’s employment. However, Cloudbreak could have considered the number of employees at Cloudbreak who saw the images on Facebook, whether the images contained a reference to Cloudbreak (for instance, whether photographs were taken on Cloudbreak premises), and that the images Mr Ferguson posted were intended to intimidate and harass another employee at Cloudbreak.

While this decision is a sobering result for jilted ex-lovers who wish to take revenge on their former partners, employers should also remain vigilant. It is not uncommon for employees in similar situations to claim that their employer is vicariously liable for harm suffered as a result of harassment or bullying by another employee.