2 Session 2 of 5 · The limits
When a social media post costs a job
A post made out of hours can count in an unfair dismissal case, but only where it connects to the job. The Fair Work Commission’s benchbook says an employer’s right to supervise private life is exceptional, that out-of-hours conduct needs a relevant connection to the employment, and that claimed harm to the employer needs evidence, not just assertion.
General information about how the Fair Work Commission describes its approach, not advice on any dismissal, including anyone’s own. The Commission decides cases. The Fair Work Ombudsman and the Fair Work Commission are the official places to check.
First: who the law protects
The Fair Work Commission’s page sets out who is protected: employees who meet all of these.
- work for a national system employer, which most employers in Australia are;
- were employed for the minimum period before being dismissed, which is 6 months, or 12 months with a small business employer;
- earn less than the high-income threshold, or are covered by an award or an enterprise agreement;
- if casual, worked on a regular and systematic basis and had a good reason to expect that to continue.
The Fair Work Ombudsman defines a small business employer as one with fewer than 15 employees at a particular time, counting employees of associated entities, and counting casuals only if they are engaged on a regular and systematic basis.
What makes a dismissal unfair
The Commission says a dismissal may be unfair if it is harsh, unjust or unreasonable, any one of the three or more, and points to section 387 of the Fair Work Act. Its own examples: harsh, where the dismissal is an extreme response or hits the employee’s economic and personal situation out of proportion; unjust, where the employee did not do what they were dismissed for; unreasonable, where the evidence does not support the decision.
The Fair Work Ombudsman lists some of the factors the Commission must consider, including whether there was a valid reason related to the employee’s capacity or conduct, and whether the employee was told the reason and given a chance to respond.
The questions a post meets
The benchbook’s chapter on conduct, read in order, puts a post through a series of questions. This is a reading of that chapter, not a test the Commission publishes in this form.
- Did it happen?The Commission decides for itself, on the balance of probabilities, whether the conduct occurred. The question is not whether the employer reasonably believed it did.
- Does it connect to the job?The benchbook’s section on out-of-hours conduct begins: “It is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees.” Out-of-hours conduct needs a relevant connection to the employment relationship. The benchbook quotes an earlier decision’s summary of when out-of-hours conduct can matter, set out as three alternatives:
EitherViewed objectively, it is likely to do serious harm to the working relationship.OrIt harms the employer’s interests.OrIt is at odds with what the employee owes the employer as an employee.
- Is there evidence of harm?For out-of-hours conduct, an employer simply asserting that its reputation or the employee’s ability to do the job will suffer is not enough; there must be evidence a firm finding can rest on.
- Was there a policy, and was it applied?A substantial and wilful breach of a policy will often be a valid reason, though a breach on its own does not decide that a dismissal was fair, because all of the circumstances are taken into account; widespread breaches the employer ignored weigh the other way, and inconsistent treatment of similar conduct can be relevant.
- Was the response in proportion?Even with a valid reason, dismissing without notice for serious misconduct can be found harsh as a disproportionate response. A lost sense of trust is not, by itself, a valid reason without evidence and reasoning behind it.
Two cases from the benchbook
An employee posted negative and threatening comments about a colleague on Facebook. The Commission treated a threat against a co-worker as serious, the kind of thing no workplace would accept, and found that how the threat was made and the words used were enough reason to dismiss for serious misconduct.
An employee sent an email that vilified people of a faith, in breach of workplace policies. A Full Bench held that this was a valid reason for dismissal, yet found the dismissal harsh and unreasonable, because of its effect on the employee’s personal and economic situation and because the employer could not reasonably have concluded the misconduct was wilful.
The second case is an email, not a post, but the benchbook’s point holds: breaching a policy does not by itself make a dismissal fair.
Small businesses, remedies and time limits
The Fair Work Ombudsman says the Small Business Fair Dismissal Code is there to help small business employers follow a fair dismissal process, and that where a small business has followed the Code, the dismissal will be considered fair. If the Commission finds a dismissal unfair, it may order reinstatement or compensation.
The Ombudsman’s page also states the time limit: an application to the Commission must be made within 21 days of the dismissal.
For training, the order of the questions is the useful part. A policy staff were taught, applied evenly, speaks to several of them before anything is posted; a policy staff can follow sets out what goes in one.