In brief

  • A recent decision of Fair Work Australia confirms the capacity of employers to discipline employees for out of hours conduct on social networking sites such as Facebook.
  • In the decision of Damian O’Keefe v William Muirs Pty Ltd T/A Troy Williams The Good Guys1, Mr O’Keefe’s employment was terminated for two incidents of serious misconduct.
  • The first incident related to Mr O’Keefe’s post on his Facebook page, which his employer considered offensive and threatening to a fellow employee. The second related to his conduct at a meeting to discuss the Facebook posts.
  • Deputy President Swan held that Mr O’Keefe’s conduct in threatening another employee via Facebook constituted a valid reason for dismissal, despite the fact that the post was made out of hours, on a home computer.
  • The decision highlights that, in the era of social networking, ‘the separation between home and work is now less pronounced'.

The facts

Mr O’Keefe was employed by The Good Guys. In 2010 he commenced working under a new commission structure. He had raised concerns with a manager about the appropriate payment of his commissions but was dissatisfied with the manager’s response.

Rather than pursing the matter at a higher level within the business, Mr O’Keefe decided to deal with his frustrations by airing them on Facebook.

He posted offensive comments on his Facebook page about his employer, his pay and threatening unspecified persons at the workplace.

He was later contacted by his area manager and a discussion took place regarding the Facebook post, leading to Mr O’Keefe’s termination.

Mr O’Keefe brought an unfair dismissal application in Fair Work Australia, claiming that:

  • his posts on Facebook could not be linked with his employment 
  • his Facebook page was set to the maximum privacy settings allowable 
  • it did not display any connection to, and the post in question did not mention, his employer, and
  • he had only 11 Facebook ‘friends’  who were co-workers.

However, his employer argued that the post constituted serious misconduct, as it:

  • displayed an unacceptable attitude toward the company
  • demonstrated an ‘intimate link’ between his employment and his conduct on Facebook, and
  • was published specifically about a particular manager and demonstrated a threat that other employees could view.

The decision

Fair Work Australia found that the dismissal of Mr O’Keefe was not harsh, unjust or unreasonable and Mr O’Keefe’s application was dismissed.

In determining the matter, Deputy President Swan considered a number of factors. Importantly for employers, DP Swan found that:

  • Mr O’Keefe should have been aware of the consequences of his actions on Facebook, due to the requirements set out in the Employee Handbook, which contained policies on bullying and harassment 
  • even in the absence of the Employee Handbook, common sense would dictate that an employee could not write and publish insulting and threatening comments about another employee in this way 
  • it was irrelevant that the conduct contravening these policies occurred outside of the workplace on a home computer, and
  • the manner in which the threat was made to another employee on Facebook provided sufficient reason for termination on the grounds of serious misconduct.

DP Swan commented the ‘separation between home and work is now less pronounced that it used to be’.

The decision provides guidance for employers about their capacity to discipline employees for out of hours conduct related to social networking, especially where that conduct breaches a workplace policy or threatens an employee.

Social networking and out of hours conduct

With the reduced separation between home and work, employers appear to be facing an increasingly difficult task of monitoring employee conduct, both at work, and outside of work via social networking sites such as Facebook.

Unfair dismissal case law demonstrates that employers can terminate an employee for out of hours conduct in limited circumstances where the conduct:

  • undertaken by the employee, viewed objectively, is likely to cause serious damage to the relationship between the employee and employer 
  • damages the employer’s interests, or 
  • is incompatible with the employee’s duties as employee2.

For dismissals to be lawful, they need to demonstrate a sufficient nexus between the conduct and the employment relationship. Examples of successful unfair dismissal claims relating to alleged misconduct on social networking sites include:

  • ‘silly’ comments posted on Facebook about a Christmas bonus were not detrimental to the business, the employer did not raise concerns with the employee at the time and the employer was not named in the post or on the employee’s Facebook page3 
  • a Facebook post that did not reveal to whom it was directed and had no specific reference to the employee’s employment,4  and
  • a photograph was taken by a former employee and posted on Facebook which depicted the applicant in a ‘cardboard car’ made from work materials, behind a service counter. The employer did not demonstrate any damage to the business and notably, the applicant did not post the photograph on Facebook5.

In light of such decisions, when managing alleged employee misconduct, employers should:

  • act on issues promptly when they occur
  • beware of forming a view about allegations prior to the conclusion of any investigation
  • consider whether the requisite connection or nexus between the conduct and the workplace/employment relationship is established before taking any disciplinary action
  • take into account the surrounding circumstances, including the employee’s length of service, previous performance or disciplinary issues, reasons given, and whether there was a clear policy in place at the time of the incident, and 
  • beware of making a decision to terminate an employee before all relevant information has been gathered and considered.