Case Study: Unfair Dismissal - social media misconduct

In a recent case held before the Fair Work Commissioner, an employee had been terminated for speaking out against their employer in a reply to their message on the company’s online rostering platform that allowed colleagues to communicate with one another in a public forum.

The employer claimed the employee had publicly criticised them and as a result their shifts were taken away from them without consultation and they were removed from the company’s internal communication systems and information technology programs. The commissioner deemed the dismissal of this employee to be unfair and unjust for the factors below. 

1. The worker was given reasons for her dismissal
2. The employee was not provided the opportunity to respond to the allegations nor were they provided with an opportunity to put forward their reasonings for what they had said and why. 

As outlined in the Fair Work Commission's Unfair Dismissal Bench book, there are factors the commissioner will consider to determine whether the dismissal was harsh, unjust or unreasonable. This is also called determining the merits of the unfair dismissal claim. A dismissal may be:

• unjust because the employee was not guilty of the alleged misconduct
• unreasonable because the evidence or material before the employer did not support the conclusion
• harsh on the employee due to the economic and personal consequences resulting from being dismissed, or
• harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime). 

In conjunction with the above mentioned considerations by the commissioner, they will also look at the dismissal process and determine whether the appropriate steps have been taken to dismiss the employee fairly. These include:

• notifying the employee of the reason for their dismissal
• allowing the employee an opportunity to respond to the allegations or situation that involved them that has led to disciplinary actioning being taken
• unreasonable refusal of a support person 
• warnings for their unsatisfactory performance. 

By failing to follow even one of these steps, as seen in the case above, the commissioner is able to deem the dismissal of an employee unfair, which may result in the employer incurring monetary fines. 

	Workplace Relations Support  Workplace Relations Support can help members with initial support through the dismissal process or speak with you about an employee’s misconduct and what the appropriate approach may be. You can contact us via phone (07) 3872 2222 and email support workplacerelations@amaq.com.au.
	Workplace Relations Toolkit Workplace Relations Toolkit subscribers are provided with warning letter templates as well as performance improvement plan documentation that can be used for your practices own performance review and management processes.
	Workplace Relations Consultancy Workplace Relations Consultancy can assist members through the termination process with drafting documentation for dismissal meetings. Should you find yourself in a position where an employee has made an unfair dismissal claim against you, our Workplace Relations Consultant can assist members through this process as well.