Every employee owes their employer a duty of good faith and fidelity. This duty is implied at law and is fundamental to the employment relationship. It requires that an employee not engage in conduct which is incompatible with the mutual trust and confidence which must exist between the parties. In practical terms, this duty prevents an employee from doing things which might undermine the business of the employer or adversely affect the employer.
The duty of good faith and fidelity is important in the context of an employee’s actions on social media because of the public nature of those activities.
Employees have always vented from time to time about their employers. However, in the past it may have been a case of just letting off steam in the presence of your family or close friends. There was no public (and permanent) record of this activity.
With the rise of facebook, personal blogs and social media of this type, things have changed.
Notwithstanding the very public nature of social media (and the tendency of many employees to “friend” work colleagues and even work supervisors), there is a genuine risk that negative comments about employers will breach the duty of good faith and fidelity.
Traditionally there was a line between an employer’s control over conduct which occurred outside work and the conduct which occurred at work. It is now largely accepted that with the advent of social media, this line has blurred.
The extent to which comments on social media may be justifiable grounds for termination is a developing area of law. The examples of recent cases below give some guidance:
Example 1: Offensive Comments but Special Circumstances Applied
The Full Bench of the Fair Work Commission found that a truck driver had been unfairly dismissed after he posted a range of offensive comments to facebook regarding his employer, Linfox .
However, in finding that the employee had been unfairly dismissed, the Full Bench referred to the “special circumstances” which applied in this case. These circumstances are summarized below:
- The worker was older and his job prospects on losing his job were limited.
- Up until the facebook comments, the worker had enjoyed a good reputation.
- The worker’s wife and children set up his facebook account and he mistakenly believed it was set up to utilize the maximum privacy settings.
- The most objectionable comments made on his facebook page were posted by his work colleagues. The employee did not know how to delete those comments.
- Linfox did not take any action against the employee’s co-workers who posted objectionable comments on his facebook page.
- Linfox did not have a social media policy and had not provided any guidance to staff on use of social media.
In my view, the special circumstances in this case will be given less weight as time passes and the use of social media is better understood.
Example 2: Crude and threatening comments justified dismissal
In a recent decision involving an employee at a Good Guys store , the employee used his facebook page to make very explicit negative statements about his employer. The employee in question had had many prior conversations with his female store managers about his pay.
On the relevant occasion (and outside working hours) he posted to his facebook page:
“wonders how the f–k work can be so f–king useless and mess up my pay again. C–ts are going down tomorrow.”
The employee contended that as the employer was not named, and as his facebook page was set to the maximum privacy levels, the comments were not sufficient to justify dismissal.
However, the FWC accepted that some of the employee’s work colleagues were “facebook friends” of the employee and as a result the female operations manager involved in pay discussions was quickly made aware of the statements and reasonably believed them to be threatening.
The employer had a handbook prohibiting sexual harassment and bullying. However, the Commission held that “common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred”.
The FWC upheld the dismissal of the employee.
Example 3: Silly outburst not enough where no harm to business
In another recent unfair dismissal case involving a hairdresser , the employee posted about her dissatisfaction at her Christmas bonus in the following terms:
“Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!”
The employee was terminated without notice after a third party alerted the salon owner to the facebook post. This employee also had her facebook set as “private” so it could only be viewed by her facebook friends but the fact that it was passed onto the salon owner highlights the public and permanent nature of this type of social media.
The FWC ultimately found that the employee had been unfairly dismissed because her outburst had not caused any harm to the business of the employer. However, the Commissioner did make a number of important observations. She said “a Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences”.
Example 4: Employers using facebook or authorizing its use may also be at risk
The relevance of social media in bringing employment to an end does not only apply to employees.
Employers who post (or indirectly allow their staff to post) comments may also be at risk.
A very recent case involved an unfair dismissal claim from a company group where the employee had worked for numerous corporate entities at different outlets of the business over the years. It appears things soured for her when her relationship with a senior work colleague ended and she became engaged to a new person apparently quite quickly.
The daughter of a director, and the employee’s work colleague, sent the employee a message on facebook which said that the employee was a “horrible human being” and that she should expect “Karma to come back and bite [her] in the ass”. The employee responded by asking what she had done. The response from the director’s daughter was as follows: “If it’s true that you’re engaged whilst STILL being married. We all think (blair included) that it’s inappropriate for you to come back to work.”
From the facts, it appears that “Blair” was the director that had originally hired the employee.
After the Facebook messages, the employee’s mobile phone was disconnected.
The Commissioner held that both directors were aware of the Facebook message. He also held that they knew that the employee had treated the message as a dismissal. In these circumstances, the Commissioner held that it was incumbent upon those directors to have clarified the position with her. They did not do so.
Importantly, Commissioner Roe stated that it was not relevant that the Facebook message was sent by a non-director who was not the employee’s supervisor. He held that:
“It is not uncommon for a manager to authorize someone else to pass on a message. Given the relationship between [the daughter] and [the director] there would be nothing unusual about her relaying a message even though she was not in a management position”.
This matter is ongoing and the question of the fairness of the employee’s dismissal is yet to be determined.
Lessons from these Cases
It is abundantly clear that some employees will choose to use Facebook, Twitter, personal blogs and other social media avenues as a means of commenting on their employment.
This poses a genuine risk to employers both in terms of their obligation to protect other staff from bullying and harassment but also to protect their business from derogatory or negative comments. It also poses a risk in respect to wayward managers or supervisors taking matters into their own hands.
The best way to protect against such risks is to have clear enforceable policies to control the use of social media insofar as it relates to the employee’s employment.
It is very common for employers to reinforce the duty of good faith and fidelity in the common law employment contracts by clauses requiring their employees to refrain from engaging in conduct which may bring the employer into disrepute. In my view, this is insufficient to deal with the risks poses by social media. It would be far better to have clear obligations (whether set out in a standalone policy or in an employment agreement) to deal directly with social media and expressly prohibiting certain conduct such as:
- making negative or derogatory comments about the employer or employee; and
- using social media to engage in conduct in breach of bullying and harassment policies.
We have dealt with this in more detail at the end of this paper.
- Click here to read part 1
Private Activities with Public Consequences: The unsanctioned use of Social Media by Employees - Click here to read part 2
Using Social Media in your Business: It is not all good news for Employers - Click here to read part 3
Upholding confidentiality and restraining competition and solicitation in a digital age - Click here to read part 4
Managing the social media challenge
To discuss the impact of social media and your business contact Leonie Kyriacou on l.kyriacou@pigott.com.au
This paper and accompanying seminar provide a summary only of the subject matter covered, without the assumption of a duty of care by Pigott Stinson Lawyers. The summary is not intended to be nor should it be relied upon as a substitute for legal or other professional advice. Copyright in this paper and any related seminar is owned by Pigott Stinson Lawyers.