The recent case of Renton v Bendigo Health Care Group  FWC 9089, is a timely reminder about the use and abuse of social media in the workplace. It highlights why employers need to have appropriate policy in place if they want to be able to lawfully terminate employees for misconduct.
In the Renton case, a former employee of Bendigo Health Care Group was found to have been unfairly dismissed. This was despite ‘tagging’ two of his colleagues in an offensive and sexually explicit video post on Facebook. That same day after posting the video, the employee also left blobs of sorbolene cream and tissues on the desk of a colleague tagged in the video.
That colleague complained about the two incidents and the employer dismissed the employee for serious misconduct. At the unfair dismissal hearing, the employee argued that his dismissal was unfair.
The Commissioner said that the employee had:
Despite this, the Commissioner said the dismissal was disproportionate to his misconduct. This was because of its one-off nature and the lack of previous misconduct. Having found the dismissal of the employee to be harsh, it was therefore found that he was unfairly dismissed.
Even though the employee was not apologetic and posted offensive behaviour on Facebook, his conduct was considered an isolated incident, and his employment history was otherwise spotless.
This decision suggests that an employee’s behaviour must be quite extreme for a dismissal decision to be valid. Before deciding to terminate an employee, you should make sure that you have:
The best way to do this is to include it in your employees’ contract of employment.
If you would like to discuss how you can effectively manage social media usage of your staff, contact Adam Foster at Lewis Holdway Lawyers.