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Can you fire someone for their social media posts and activity?

Social Media

Written by: Victoria-Jane Otavski, Principal and Michelle Li, Paralegal

As social media increasingly intrudes on more aspects of our lives, it can become more difficult to separate an employee’s personal use of social media from their professional life or online presence. The recent decision of Clair Petersen v Kizuri Capital Pty Ltd, Maycorp Pty Ltd and Cricklewood Capital Pty Ltd T/A Allpet Products, handed down by the Fair Work Commission (FWC) on 20 October 2020 considers this very issue, and reminds employers to be prudent and ensure there are sound, defensible or well-founded reasons before disciplining or dismissing an employee, including for reasons involving social media use. In the case, Allpet’s failure to consider the impact of COVID on Ms Petersen’s performance shortfalls or afford her an opportunity to respond to concerns about her social media activity ultimately led the FWC to find that the employee’s dismissal was unfair and awarded her compensation.

The case concerned the dismissal of Clair Petersen, who up until the termination in April 2020, was employed as a full time Field Sales Executive of Allpet Products Ltd. She was dismissed by Allpet for alleged performance defects, namely, her failure to comply with periodic reporting obligations and in light of several customer complaints, to maintain satisfactory relationships with customers. The employer’s dismissal was also in part due to a perception of disrespect and poor attitude by Ms Petersen, the non-disclosure of a business conducted by her in personal time, and engaging in private activities during work hours, although those reasons were not disclosed to Ms Petersen. It was accepted by both parties that all times up and until the time of the COVID-19 outbreak, Ms Petersen was exceeding sales targets and had a good record of customer sales.

Social Media Posts and Activity

Evidence was given that Ms Petersen, under the online alias of her private Instagram account, expressed support for a COVID-related street poster which encouraged people to stay home. She expressed displeasure at not being able to work from home due to her employer’s directions to the contrary and the risk of losing her job if she were to protest against those directions. Whilst the employer alleged this was disparaging of the company, the FWC did not consider this post to be insubordinate or otherwise a valid reason for dismissal, finding that the mere expression of dissatisfaction by an employee does not amount to disparagement of the employer. Ms Petersen did not name the employer or use any extreme phrasing, and the fact that she posted this soon after learning that her pay and hours would be reduced due to COVID19 were all held to be mitigating factors. Finally, it was also relevant that the employer did not have a social media policy to guide online posts by staff.

An employer who relies on social media to monitor an employee’s activities during work hours should be careful to avoid assuming an employee is in breach of his or her duties or otherwise “shirking off” without providing the employee an opportunity to respond to such allegations. In this case, the employer had investigated Ms Petersen’s online activity and by corroborating the posts’ timestamps with the location data from her work-issued iPad, came to the conclusion that Ms Petersen was engaging in private activities during work hours on multiple occasions. Only one instance was made out, and even so, her spending the workday with a close friend was held by the FWC to be something that could have been dealt with by a warning, rather than dismissal.

Whilst it was likely that Ms Peterson’s social media posts, initially spotted by the wife of a director of Allpet, were the tipping point of a culmination of seemingly defiant acts by Ms Peterson, the FWC determined the undisclosed reasons for the dismissal to be unfair assumptions, as on an objective analysis, the evidence did not support the employer’s views. All concerns held by the employer could have been cleared up by Ms Petersen with discussion or counsel, and thus were not valid grounds justifying her immediate dismissal.

 

Impact of COVID19

The FWC also made findings concerning COVID’s impact on employee’s performance.  The Commission held that Allpet’s actions, in reducing both Ms Petersen’s working hours and pay by 20% whilst requiring she maintained the same workload, was a mitigating factor in her failure to meet her reporting obligations. The Commission noted her “natural anxieties” about meeting with customers in public places without protective clothing and the pandemic’s impact on her perceived job security.

In Ms Petersen’s case, an unreasonable number of expectations were found to have been placed on her, and her performance could not therefore be assessed against the same criteria as in ordinary times. Although Ms Peterson was found to have breached her employment requirements in failing to fulfil her reporting obligations, this warranted formal sanction only and were not held to be a valid reason for dismissal.

 

Key take-aways for Employers

This case is unlikely to be the last where an employee’s social media activity raises red flags with an employer.

As a lack of procedural fairness will weigh strongly in favor of a finding for unfair dismissal, employers are encouraged to avoid hasty reactions to an employee’s online activity and ensure that an employee has an informed opportunity to respond to any allegations before terminating the employee’s employment for reasons involving social media content, use or other online activity. Implementation of a social media policy documenting clear expectations of employee behavior is also strongly encouraged.

Employers should also be careful to note the impact of the pandemic on their employees, and to consider whether dismissing an employee for performance issues is still justifiable in light of those impacts. Any shortfalls in performance must be assessed with the pandemic in mind, rather than against orthodox performance criteria. The ever-shifting circumstances and changing company policies are sure to cause disruption to even the best employee, and employers should give their employees sufficient time to adapt.

If you are seeking any advice on the termination of staff or wish to implement a social media policy in your workplace, please do not hesitate to contact Victoria-Jane Otavski at Victoria.jane@automicgroup.com.au or (02) 8072 1463.