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Recent case in FWC shows why it's important for employers to follow correct termination procedures.

A recent case in the Fair Work Commission highlights a lawful termination of an employee following the employee’s misuse of social media.

Cameron Little v Credit Corp Group Limited t/as Credit Corp Group (U2013/11522), was initiated by Cameron Little following termination of his employment after his employer became aware of inappropriate comments he made on Facebook outside of his work hours.  The FWC concluded that the dismissal was lawful. 

There have been other cases concerning the dismissal of employees for inappropriate social media use that did not stack up to scrutiny.  What makes this one different?

It is because Credit Corp Group were very careful in following the correct procedure for dealing with such an issue. They made sure they provided:-

  • employee education and awareness
  • prior warnings
  • written and verbal notice of reasons of termination and
  • the opportunity to respond

Go to article on The Correct Procedure for Terminating Employment.

In his defense, Mr Little argued...

But aren’t I entitled to my personal opinions?

Mr. Little argued that he was entitled to his personal opinions, which were posted online. 

The FWC pointed out that, although an employee is “perfectly entitled to have his personal opinions, he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability.”

But!  The posts were made outside of work hours!

The FWC confirmed that it is not when the comments were made that is important, but the effect and impact of those comments on the employer and other employees.  It said; “It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct.  But such circumstances are limited:-

  • The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and the employee; or
  • The conduct damages the employer’s interests; or
  • The conduct is incompatible with the employee’s duty as an employee.

In essence, the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.  Absent such considerations, an employer has no right to control or regulate an employee out of hours conduct.”(1)

In this case, the FWC found that Mr. Little’s conduct:

  • “Seriously damaged the relationship between the employer and employee;
  • Damaged the employers interests;
  • Potentially damaged the relationship between the employee and other employees; and
  • Was incompatible with the employee’s duty as an employee”.

No remorse

The FWC also considered that Mr. Little, while prepared to admit that he breached the Code of Conduct and company policies, was not in any way remorseful for his actions.  Rather, he asserted that he was indeed entitled to do what he did, and gave unconvincing excuses for his behaviour.  This left his employer with doubt that the inappropriate behaviour would stop.

What can employers take from this decision?

Your employees need to know what constitutes inappropriate social media conduct.

Your business should have clear policies in place that outline your position regarding social media use.  Further, you should adequately communicate these policies to your employees and provide ongoing awareness and education on the matter.

Do not ignore breaches of your policies by employees.  Consider issuing a formal warning and/or take the opportunity to offer further training and support if necessary.

For serious breaches resulting in dismissal

You must notify the employee of your reasons for the dismissal, and give the employee an opportunity to respond to same, prior to terminating their employment to afford them full procedural fairness.

For a full transcript of Cameron Little v Credit Corp Group Limited t/as Credit Corp Group, see here.

Further resources

Correct procedure for terminating employment

Social Media Policy

Employment Agreement

Workplace Policy

(1) Excerpt from Rose v Telstra

 

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