WhatsApp messages in which an employee expresses his opinion about a superior in an offensive manner can be sufficient reason for the employee’s instant dismissal. For employers, therefore, monitoring social media use by their employees pays off, and the importance of a good social media policy is ever increasing.
In a recent case, a colleague pointed the superior to insulting WhatsApp messages sent by the employee. The employer decided to dismiss the employee instantly.
After his dismissal, the employee had to hand in his company laptop. On inspection, it appeared that the employee also sent some offensive Skype messages in which, amongst other things, he had called his superior an “idiot”.
In preliminary relief proceedings before the court of Amsterdam, the employee claimed reinstatement. According to the employee the instant dismissal was invalid and the evidence unlawfully obtained. As he had deleted the Skype messages, it should have been clear to the employer that this was private information.
The court rendered that the employer was allowed to retrieve the Skype messages, because only work related messages were investigated. The WhatsApp messages themselves were reason enough to start such investigation and, based on the information obtained, it could not be said that the employer had no interest in that information.
The claim for reinstatement was denied as the court held that the employee had failed to demonstrate sufficiently that it was plausible that the dismissal would be regarded as invalid in proceedings on the merits. We will have to wait and see whether the instant dismissal will indeed be confirmed as just and valid in these proceedings.
Social media policy
Social media is becoming more and more important in the employment relationship. Recently, there have also been court cases regarding, amongst other matters, the validity of reporting illness or resignation via a WhatsApp message. It is advisable for employers to have a clear social media policy in place. Such policy makes employees aware of the risks involved in using social media and enables the employer to call employees to account.