A bank employee posted a negative status update on Facebook and was subsequently dismissed. However, the dismissal was unfair as the update was not directed at named customers or the bank's management and it was quickly removed and did not have actual harmful effects on the bank.
An employee had been employed with a bank for nine years and was a shop steward. She worked on Friday 28 December which was the last banking day of the year. After a tough day at work, she posted the following message on Facebook around 10 pm.:
"Holiday! To hell with people who suddenly remember about deposits in children's savings account and pension contributions on the last banking day of the year! There are fucking 364 other days of the year when you can call about this!"
The employee deleted the message on Facebook the following morning. She had 128 friends and a private Facebook profile. The update was not commented or shared.
The bank's management learned about the update at the beginning of January and dismissed the employee after having conducted negotiations with the union in vain as the management believed that she had failed in her duties and been grossly disloyal.
The claim for unfair dismissal was then submitted to an industrial tribunal. The arbitrators failed to reach an agreement on the decision, and consequently, the Labour Tribunal took over the reference and became responsible for deciding the case.
As a general rule, an employee is obliged to be loyal to her employer – both during and outside working hours. It may have consequences under employment law if an employee criticizes her employer in public. In several cases, it has been concluded that content posted on social media is considered in public domain even when you have a private profile, the reason being the risk of information being shared.
In the case at hand, the employee was a shop steward, and therefore, she enjoyed special protection under Danish employment law. Consequently, she could be dismissed only for compelling reasons.
Labour Tribunal's advisory opinion
The Labour Tribunal assessed that the status update was "unfortunate", and that there was a risk of it being shared even though the employee had a private profile. As it would be possible to identify the bank, there was a risk that the update may have some harmful effects.
However, the employee's message was not directed at named customers or the bank's management, it was quickly removed and had no actual harmful effects on the bank. In addition, the Labour Tribunal took into account that the employee had worked for the bank for nine years without receiving any warnings or reprimands.
On these grounds, the Labour Tribunal concluded that the message on Facebook would justify a warning, but not dismissal, as there were no compelling reasons for dismissing the employee. The arbitration tribunal then agreed that she was to receive compensation equal to eight months' salary.
Employers should carefully consider how to avoid employees' harmful messages on social media. Most cases can be avoided by implementing a practical policy with good advice and guidance to be discussed with the employee at internal workshops or via on-line training.
If a matter nevertheless arises with an unfortunate comment on Facebook, the employer should assess the consequences it is to have to the employment. In many cases, coaching of the individual employee and – depending on the circumstances – a warning would suffice. Only in extreme situations will a dismissal be justified – and necessary.