Karl Rozenbergs, Partner and Jessica Pratt, Senior Associate at Hall & Wilcox, outline the recent decision from the Fair Work Commission on a dismissal following a Facebook tirade.
The Fair Work Commission (FWC) has once again considered the persistent challenges raised by an employee’s use of social media outside work.
The recent decision of the FWC decided that it was harsh for alarm and surveillance monitoring provider Staysafe Security t/as Alarmnet Monitoring (Alarmnet) to terminate long-term employee Creina Murkitt after she was found to have breached the company’s social media policy.1
The decision is a contrast to the recent High Court ruling that anonymous tweets criticizing the government’s immigration policy contravened social media guidelines and public service codes of conduct. In that decision, the termination of the former Department of Immigration and Citizenship employee was justified as reasonable administrative action (our update on the High Court’s decision can be accessed here).2
In this case, Ms Murkitt posted a disparaging rant on Facebook venting her frustration at the new owners of Alarmnet, describing her job as ‘thankless’ and specifically naming her employer, lamenting that, ‘I use (sic) to love my job at Alarmnet Monitoring’. After the Facebook post was drawn to the attention of Alarmnet, it was determined that it breached Alarmnet’s social media policy and amounted to serious misconduct warranting dismissal. At the time Ms Murkitt made the post, she was off work receiving workers compensation payments for psychological injury which she attributed to the conduct of Alarmnet’s new management.
The FWC was asked to determine whether Ms Murkitt’s conduct constituted a valid reason for her dismissal, and if it did, whether the dismissal was harsh, unjust or unreasonable. It was not in dispute that Ms Murkitt created the Facebook post, that it was critical of her employer and had become the subject of talk amongst a number of employees and a client of the company. This resulted in establishing a connection between the creation of the post and Ms Murkitt’s employment.
Alarmnet’s social media policy required employees to refrain from posting material that could adversely affect the ‘image, reputation, viability or profitability of the Company’ and evidence was adduced by Alarmnet that Ms Murkitt had received a copy of the policy and was aware of its contents.
The FWC concluded that Ms Murkitt was validly dismissed and a proper process had been followed. However, the FWC considered that the following factors led to Ms Murkitt’s dismissal being harsh, unjust or unreasonable:3
- she had been employed at Alarmnet for almost 15 years and had not previously been the subject of formal disciplinary action;
- at the time she made the post, Ms Murkitt was suffering from a psychological condition that made her unfit for work and Alarmnet failed to sufficiently take this factor into account when deciding to dismiss her; and
- the Facebook post was a single event that did not cause financial harm to Alarmnet.
Overall, the FWC found that the sanction of dismissal was a disproportionate outcome when taking into account Ms Murkitt’s medical condition, length of service and lack of previous performance issues.
Although finding in her favour, Ms Murkitt was ultimately not awarded any compensation because the FWC formed the view that she would not have continued to work for Alarmnet if she had not been dismissed, she was receiving workers compensation payments at the level of 100% of her average earnings, and in light of her misconduct. As such, reinstatement was not considered appropriate.
Implications for employers
Consistent with the principles concerning damaging off-duty conduct notably expressed in Rose v Telstra Corporation Limited4 and O’Keefe v The Good Guys,5 the decision endorses the view that it is acceptable for employers to manage an employee’s social media use beyond workplace walls.
However, the FWC will pay careful attention to the context and circumstances surrounding an employee’s conduct when deciding whether a dismissal for a breach of a social media policy is warranted. The employee’s personal circumstances including their psychological state at the time the conduct took place, the impact on the employer’s business and reputation, as well as the impact on other employees needs to be considered. In some cases, a reprimand may be an appropriate course of action for breach of a social media policy.
To reduce the legal challenges presented by social media, employers not only need to have a clear social media policy in place, but it needs to be kept up to date and properly integrated through workplace training.
Our employment team would be pleased to assist you to navigate the practical workplace challenges arising from social media.
This article was written with the assistance of Alexandra Armstrong-Millar, Law Graduate.
1Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622.
2Comcare v Banerji [2019] HCA 23.
3Fair Work Act 2009 (Cth), s 387.
4[1998] AIRC 1592.
5Damian O’Keefe v Williams Muir’s Pty Ltd t/as Williams The Good Guys [2011] FWA 5311
To hear more on the Fair Work Commission, attend our Workplace Law Conference 2019 where there will be presentations focusing on its Anti-Bullying Jurisdictions and conducting fair and effective workplace investigations.
Karl Rozenbergs is the section leader in the firm’s Employment & Workplace Relations team. Karl is an experienced litigator who understands the complicated nature of employment disputes and the effect they have on a business’ culture. He is a skilled negotiator and appreciates that sometimes less is more. Karl advises his clients in adverse action claims at the Fair Work Commission, implementing and negotiating enterprise agreements, unfair dismissal claims, discrimination claims and contractual disputes. Karl acts for a diverse range of clients, from those that are state based to large companies which operate throughout Australia. He regularly deals with clients in the financial services, aged care, manufacturing sectors and quasi-government bodies. Karl is a member of the Law Institute of Victoria and its Litigation Section and a member of the Australian Human Resources Institute and the Industrial Relations Society of Victoria. You may connect with Karl via email: karl.rozenbergs@hallandwilcox.com.au
Jessica Pratt practices in employment and workplace relations law and provides strategic advice to clients across a range of industries. She provides practical and commercially-focused advice on all aspects of employment and workplace relations law, including general employment and HR issues, modern award application, employment litigation (including unfair dismissal, adverse action and breach of contract claims), disciplinary and performance matters, corporate restructuring, and workplace investigations. In addition, she is experienced in advising on privacy law, and work health and safety law issues. Jessica provides advice to both local and global clients across a number of industries, including banking, finance and insurance, transport and logistics, education, manufacturing, property development, and Government. In addition to her commercial experience, Jessica advises numerous clients from the not-for-profit sector through the firm’s substantial pro bono practice. Jessica is a member of the Law Institute of Victoria and regularly presents at client seminars. You may connect with Jessica via email: jessica.pratt@hallandwilcox.com.au or LinkedIn 
