Managing Social Media Risk
By Jaaden Morrall, <PositionTitle, Peak Legal & Workfoce
The Fair Work Commission (FWC) has ruled that a supervisor's critique of management within a social media group chat, leading to a negative and confrontational atmosphere among the team, coupled with performance concerns, formed valid grounds for her dismissal.
The Applicant commenced employment with the Dolphin Hotel (the Respondent) as a casual employee on 24 April 2021 in the role of Bar Manager. The Applicant was terminated on 10 November 2023. She lodged an application for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 on 17 November 2023.
A meeting was held with the Applicant and the General Manager and Operations Manager of the Respondent in August 2023 to address observed behavioural issues. These concerns encompassed unauthorised breaks during peak times, unapproved closure of the bar, customer complaints, and tardiness. While acknowledging a performance decline, the Applicant attributed it to the recent loss of a coworker in May 2023 and expressed intent to enhance customer interactions.
After attending a bar supervisors meeting in October 2023, that reinforced that the focus would be on improving customer service and endorsing management decisions, the Applicant was reported by several staff as criticising management within the "Dolphin Fam Bam" Facebook chat. Despite being spoken to about appropriate social media conduct, the Applicant continued to use those platforms to vent her own opinions on the management team. Additionally, she excluded certain staff from a staff group chat on WhatsApp whom she considered “managerial”.
The Dolphin Hotel contended that the Applicant’s language in these communications could incite bad behaviour and negativity toward management. The General Manager communicated to her the unacceptable behaviour and noted the decline in attitude, stressing the inappropriateness of excluding individuals from social media chats and fostering negative discussions about management.
Consequently, the Respondent terminated her employment, citing concerns regarding her behaviour and attitude and her involvement in a group chat fostering adverse comments about the management team as a primary concern.
The Applicant argued that the social media group was a personal space for friends, not a work-related forum. However, Deputy President Cross of the FWC disagreed, determining that the chat groups were clearly linked to the workplace, stating:
“There is no sensible basis for describing the group as a private group chat"
Deputy President Cross found the Applicant's actions, particularly given her supervisory role and previous instructions not to question management decisions, as unacceptable. He concluded that her behaviour, alongside performance issues, justified her dismissal.
The Respondent also raised a jurisdictional objection to the Applicant's unfair dismissal claim, asserting that she was not protected from unfair dismissal because she was a casual employee without regular and systematic employment. However, the FWC rejected this objection, concluding that the Applicant’s employment was on a regular and systematic basis, indicating a reasonable expectation of continued employment.
Deputy President Cross dismissed the jurisdictional objection, affirming that the Applicant's employment was indeed regular and systematic, thereby upholding her eligibility for protection from unfair dismissal. However, Deputy President Cross did not find that the dismissal of the Applicant was harsh, unjust or unreasonable.
While this case was in the FWC, it’s a friendly reminder to recognise how seemingly non-work-related activities, such as social media interactions, can have significant implications for the workplace environment. Some key takeaways would be to ensure clear communication, provide constructive feedback and address underperformance concerns promptly. As well as the importance of fostering a positive work culture to mitigate potential conflicts arising.
It’s also a reminder to ensure you have the appropriate policies in place, particularly around social media use and consequences associated with misuse of social media, and the distinction between personal and professional communication channels.
If you have any questions, please contact our Peak Legal and Workforce team at peaklegal@wearepeak.com.au.