Imagine for a moment that you’ve just found something on Facebook that untruthfully accuses you of short paying your staff and paints you as a harsh, uncaring boss. Now imagine that the post was written by one of your employees.
How would you react?
If your first response was that you’d want to sack the employee, you’re not on your own. In Australia there’s a growing number of employees who have been sacked as a result of things they’ve said on Facebook. Although most of these dismissals have been warranted some have been challenged as being unfair. These challenges have been resolved by Fair Work Australia hearings and the results of those hearings help to clarify the legal position of employers faced with these situations.
In the lead up to Christmas 2009, Escape Hair Design employee Sally-Ann Fitzgerald had given her employer more than a few headaches. Arriving late to work on Christmas Eve, Miss Fitzgerald was issued with a formal warning about her punctuality. Unhappy with that, she took to Facebook and posted: “Xmas bonus alongside a job warning, followed by no holiday pay!!! Whooooo! The Hair Dressing Industry rocks man!!! AWSOME!!! [sic].”
For reasons known only to the salon owner, nothing was done about the post. Then, in early 2010, tragedy struck when Miss Fitzgerald witnessed her friend dying in tragic circumstances.
Sensibly, Miss Fitzgerald’s employer suggested she take all her leave. Insisting that she’d be fine, Miss Fitzgerald took leave of just one week. On her return to work it became apparent that things weren’t the same. After rescheduling clients without her employer’s authorisation, she was handed a lengthy termination letter. The letter detailed the reasons for her dismissal, which included the Facebook update.
Upset with the manner in which she was dismissed, Miss Fitzgerald took the matter to FWA. She was successful.
In handing down her findings, FWA Commissioner Bissett made three matters about the Facebook post abundantly clear.
First, she was critical of the employer for not doing anything about the post when it was first published. In her view, the employee’s work history indicated that, had the employer issued a written warning when the post was published, the employee would have deleted the post immediately.
Second, she determined that despite the post being “foolish” and innacurate, it was unlikely to have caused any material damage to the reputation of the business.
Finally, the Commissioner found that the employer knew that Miss Fitzgerald was still struggling to come to terms with the death of her friend when she was fired and therefore the dismissal was harsh, unjust and unreasonable.
The employer was ordered to pay compensation in the sum of $2 340.
- Is the post likely to cause serious damage to the employer/employee relationship? Agents should avoid being thin-skinned. Posts expressing antipathy for the daily grind of property management shouldn’t necessarily be taken as criticism of your management style. What should be off limits is any form of bullying and harassment and anything that may be construed as a threat to anyone on the team.
- Is it inconsistent with the employee’s duties and responsibilities? Here you’re smart to consider the roles undertaken in your business. Sales reps have a more public-facing job and part of their role is to use all of the resources at their disposal to generate business. This would reasonably include the use of their Facebook profile and therefore it would be fair to expect their profiles to convey a far greater degree of polish than someone performing a clerical role within your business.
- Is it likely cause harm to your reputation or otherwise damage the interests of your business? The degree to which this occurs is dependent on a number of factors. Along with reviewing the contents of the offending post you should ask a number of questions. What Facebook privacy setting was used when the post was published? How many clients of the business were friends with the employee at the time? How many likes and comments did the post generate? How long did the post stay live?
- Can a sufficient nexus be shown to exist between the Facebook post and your business? If your business wasn’t mentioned in the post, if you’re not shown as the employer on the employees profile and if the employee has only a few client friends it’s difficult to show a sufficient connection. On the other hand, where a sales rep has a lot of client friends, where their profile is full of their latest listings and where their profile lists your business as their employer it’s easy to demonstrate a strong connection. Profiles of this type should be held to a higher degree of accountability than those where little or no connection is evident.
What are the takeaways from this case for you and your agency?
Keep the following five-step process in mind if you’re ever forced to deal with your own Escape Hair Designs moment.
- Act quickly. Had Sally-Ann Fitzgerald’s employer acted immediately the result would have been very different. Once you become aware of an offending post take action.
- Gather all the facts before forming an opinion. Don’t jump to conclusions. Start with a forensic analysis of the post and run it through the four-part test above. Don’t react emotionally. Rather, methodically work out what terms of your employment contract has been breached and what damage is likely to have been caused. Once that’s done, move on.
- Decide if a sufficient nexus exists between your business and the employee. This is an important step because, without a connection, it’s hard to prove any realistic cause for dismissal.
- Take into account the surrounding circumstances. An angry or ill-disciplined Facebook post may be a symptom of a deeper personal issue. It’s your job to unearth these issues and this is best done by calm, rational conversation rather than resorting to accusation and inquisition.
- Terminate only as the last resort. This is a logical step that flows from calmly working your way through the previous four. There’s much you and an employee can learn from a commitment to work though the issues that arise from an initially hurtful Facebook post.
Have you ever had to deal with a negative Facebook status posted by an employee? How did you handle the situation? Let me know by commenting on this post.