Termination for misuse of social media – police with the right policy in place

The recent case of Renton v Bendigo Health Care Group [2016] 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:

• negatively affected the health and safety of colleagues
• engaged in conduct that had the potential to damage the employer’s reputation
• exposed his colleagues to humiliation and ridicule at work.

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.

Getting termination right.

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:

1. A social media policy in place
2. Previously clearly outlined and implemented the policy so that employees understand the behaviour expected of them

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.