Given the popularity of social media in the lives of the young and old - at both a professional and personal level, it’s not surprising that the information now found on social media platforms is being relied upon in a range of legal proceedings in particular, unfair dismissal matters.
In a recent unfair dismissal case (IL Migliore Pty Ltd v Kelly McDonald  FWCFB 5759) an employer was able to rely on the posts of a former employee to undermine her case.
The employee was working as a pastry chef but wanted to become a veterinary nurse. On the last day of the working year (sometime in December) the employee discussed her plans with the employer and stated that that day would be her last. The employer told her that she was welcome to return in the new year if she did not secure other employment.
In the new year the employee did not secure new employment and ended up doing some work in the bakery on a casual basis, but continued to pursue other employment.
In early February, the employer asked the employee what her intentions were moving forward – that is, did she want to commit to working in the bakery full time or did she still intend on pursuing a veterinary career? A few days after that discussion the employee presented the employer with a separation certificate for signing. The employer completed the separation certificate stating the reason for leaving was voluntary resignation to pursue a career change, and the employee did not query the stated reason.
The employee subsequently filed a successful unfair dismissal claim. It was the employee’s position that she did not intend to resign in December and the employer’s actions in February amounted to a termination. The employer appealed the decision.
On appeal, the Fair Work Commission (“FWC”) held that the evidence of the discussions between the employee and employer indicated that the employee was clear in her intention to finish up work in December. In reaching that conclusion the FWC examined the totality of numerous Facebook posts made by the employee (among other things) and held that they did not corroborate her position that she had been terminated. The casual work offered to the employee in January, while she continued to look for other work, created a new employment relationship and did not change the fact that the employee had resigned from her full time position in December.