Facebook messages deemed okay as Launceston Toyota loses unfair dismissal case

A business which fired its HR manager for having a Facebook conversation with her boss’s wife has lost an unfair dismissal case, as it was determined her actions did not breach the company’s social media policy.

The Launceston Toyota HR manager, who had worked at the dealership for 18 years, when her boss’s wife, Megan Nixon, contacted her over Facebook after discovering her husband had been having an affair, Fair Work reports.

The HR manager was close with Nixon and told her to be in touch whenever she needed to.

When the boss became aware of this conversation, he instructed the HR manager and the other managers not to provide confidential information about the business to his wife.

The communication between the HR manager and the wife continued and in one private Facebook correspondence on July 19 last year the HR manager sent Nixon a message saying her husband had been called a “tosser” by everyone in the motor vehicle industry.

She also indicated all the staff did not like him and that he showed disdain toward his employees.

On August 2, 2013 Nixon’s husband accessed her Facebook page without her knowledge using her password and changed his wife’s Facebook status from single to married. While doing so he discovered the conversations she’d had with the HR manager.

A few days later the HR manager was given a letter from her boss outlining some “areas of concern” with her employment, including the discussion of confidential information.

Two days later on August 7 the HR manager was dismissed.

In the Fair Work Commission case the HR manager accepted the company’s social media policy stated not to make derogatory comments about the company, colleagues, customers or suppliers on the internet, but told Commissioner Barbara Deegan she did not believe her conversation had been covered by the policy.

The boss argued the HR manager had breached her orders not to speak with his estranged wife and also argued she breached confidentiality by mentioning other staff members in the conversation.

However, Deegan agreed with the applicant’s stance that the conversation had not been in breach of the company’s policy.

“While the Facebook conversation may have been conducted by means of social media it was in the manner of a private email,” she says.

“It is unlikely that a policy that was an attempt by an employer to control the contents of private emails between their employees third parties, written in their own time and using their own equipment would be found to have the requisite connection to the employment relationship such that an employee could be terminated for a breach.”

Deegan found the HR manager had complied with the direction not to disclose confidential information.

“I see no circumstance that could allow an employer to prohibit an employee from contact with another person merely because a senior manager of the employer had some personal issue with that other person,” she says.

“To find some connection between such a direction and the existence of a legitimate right of an employer to intervene in the personal life of an employee would be extremely difficult.”

Deegan also determined the discovery by an employer of an employee’s low opinion of them is no reason for dismissal.

“In my view more is required, particularly some evidence that the employee’s opinion is having a deleterious effect on the workplace, its employees or the business of the employer,” she said in her decision.

Holding Redlich partner Michael Selinger told SmartCompany there are increasing numbers of unfair dismissal cases involving breaches of company social media policies.

“The question is really centred on whether the conduct is private or public and how far a policy can go,” he says.

“This case is unusual because the employer obtained a password to examine the Facebook postings. So, generally speaking, employers can monitor public Facebook sites and if there are comments about the comments which are made in breach of the policy they can enforce that policy.”

Selinger says the clearer a company’s social media policy is the better.

“Because social media gets used in many different ways at all times of the day and night if your policy clearly sets out what is acceptable behaviour and what isn’t, you’re more likely to be able to enforce it,” he says.

“Although in this case the dismissal was deemed unfair, the court confirmed the principle that a social media policy can be an effective tool for managing workplace communications and controlling the risk of losing confidential information.”

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