Unfair Dismissal Despite Inappropriate Social Media Comments

We recently presented at our client day on the effect of social media use in relation to employment, and how employees posts on various social media platforms might impact the employment relationship. Since then, the Fair Work Commission has heard the case of Murkitt v Staysafe T/A Alarmnet Monitoring [2019] FWC 5622.

In this case, Ms Murkitt had been dismissed from her role at Alarmnet based on the Facebook post pictured where Ms Murkitt made some inappropriate comments where she had clearly identified her employer. This post had been seen by a number of employees at the Company, and a few clients, establishing a clear connection between Mr Murkitt and her employment.

Alarmnet had a clear policy that required employees to refrain from posting material that could adversely affect the “image, reputation, viability or profitability of the Company”. Some other key details of this matter were as follows:

• Ms Murkitt had been employed for almost 15 years, and had not previously been the subject of formal disciplinary action;
• At the time she made the post, Ms Murkitt had been suffering a psychological condition rendering her unfit for work (and was receiving workers’ compensation benefits for such condition).

The Fair Work Commission found that the dismissal was harsh based on the fact that:

• Ms Murkitt was a long-term employee;
• She had no previous performance issues;
• The Facebook post was a single event and did not cause any actual financial harm to Alarmnet.

Therefore, the dismissal was found to be unfair, as the reasons for her dismissal were harsh and disproportionate to the misconduct.

This demonstrates the importance in considering “all the circumstances” surrounding an employees conduct, when determining disciplinary action, particularly in the event that social media conduct is being reviewed, and/or termination of employment is being considered.

For tips on how to strengthen your social media policy, or to discuss performance management of an employee, contact us now.