Tips for dealing with Employees on Social Media: Employment Law Update

In September last year, Aerocare employee Nirmal Singh was awarded compensation for a successful unfair dismissal claim after he was fired for posting seemingly pro-terrorist comments on Facebook outside of work hours.

The Facts

Mr Singh was employed as a baggage handler on a casual basis by Aerocare Flight Support. In this capacity, Mr Singh possessed an Airport Security Identification Card and worked within the restricted security-sensitive areas of Perth airport.

Mr Singh’s employment was terminated after he published five Facebook posts under a pseudonym account in a closed Facebook group. This included a post in which Mr Singh linked to an article posted by an Australian Islamic group and commented, “We all support ISIS.” The posts were spotted by two of Mr Singh’s colleagues, whom were members of the closed group and aware of his alias account.

Before terminating his employment, Aerocare held a meeting with Mr Singh regarding the seemingly radical posts. In response, Mr Singh apologised and argued that the Facebook posts were “sarcastic” and part of an ongoing conversation. Aerocare asserted that the posts amounted to a breach of the company’s social media policy and employment manual, and proposed a significant security risk to public safety.

After adjourning the meeting for approximately ten minutes to consider his apology, Aerocare informed Mr Singh that his employment was terminated. Following the meeting, Mr Singh made an application to the Fair Work Commission for unfair dismissal.

The Result

The Fair Work Commission found that there was no valid reason for Mr Singh’s termination. It held:

  • The Facebook post was in breach of Aerocare’s social media policy;
  • Aerocare failed to invite Mr Singh to explain the Facebook posts which would have satisfied the company that he was not an ISIS supporter;
  • The ten minute break used to determine Mr Singh’s termination of employment was not a satisfactory amount of time to adequately consider all of the issues in the meeting;
  • Aerocare should have continued Mr Singh’s suspension, allowing the company more time to fully consider the issues;
  • Aerocare had no intention of considering any other option than terminating his employment.

As a result, Mr Singh was awarded the monetary value of 8 weeks’ pay, less 40% due to the Facebook post being in breach of Aerocares social media policy, as compensation for being unfairly dismissed.

What does this employment law update teach us?

To avoid an unfair dismissal claim, employers should:

  1. Properly investigate the context of social media comments, due to the difficulty in identifying sarcasm and satire in text-based communication;
  2. Take the time to consider any explanation provided by the employee when determining whether employment should be terminated;
  3. Have a valid reason for dismissal; and
  4. If any uncertainty arises, seek the advice of a solicitor.

Want to hear from a Newcastle Solicitor on how this employment law update could impact your business? Please don’t hesitate to contact Butlers Business and Law on (02) 4929 7002 or fill out an enquiry form on our website. We have experience in advising Newcastle and Sydney based businesses of employment rights.