A review of the decision of the Fair Work Commission in Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642
Adding to a developing body of case law regarding employees’ use of social media, the Fair Work Commission has recently upheld the dismissal of an employee who published comments on Facebook which:
- Injured, or had the potential to injure, his employer’s reputation, and its business relationship with a third party organisation; and
- Were likely to cause hurt and humiliation to one his employer’s staff, as being “grossly offensive and disgusting” sexual comments.
With the advent of social media, the decision is a timely reminder to all employers to seek appropriate legal advice to ensure that they have effective policies, and staff training programmes, in place, which:
- Minimise the risk that employees will publish inappropriate material using social media; and
- Ensure that they are suitably placed to take appropriate action should such material ever be published on Facebook, Twitter, or other social media platform.
FACTS
For a period of 3 years prior to his dismissal, Mr Cameron Little (“Little”) was employed by Credit Corp Group (“CCG”), in the position of “Customer Relationship Manager”.
In June 2013, Little used his personal Facebook account to publish material regarding an organisation with which CCG had a professional relationship, being “Christians Against Poverty” (“CAP”).
CAP was then an organisation which provided members of the public with financial advice and assistance including, in particular, debt restructuring and financial management advice. It was in this context that CCG had a professional relationship with CAP.
In addition to publishing material about CAP, Little also published material, of a sexual nature, which referred to an employee, Mr Jack Hoye (“Hoye”), who had only recently been employed by CCG.
Whilst Little identified himself on Facebook as a “dinosaur wrangler” employed at “Jurassic Park”, other details on his Facebook “profile” were sufficient to identify him as an employee of CCG.
PUBLICATIONS
Regarding the material published by Little about CAP, Little “posted” the following comments to a Facebook page operated by CAP:
“For reals bro (sic), you should put a little more of funding into educating consumers on how the world works rather than just weaseling them out of debt, blah blah blah, give a man a fish/teach a man to fish”.
And further:
“No thanks, just take my advice and try to educate people about things like ‘interest’ and ‘liability’ rather than just weasel them out of contracts. #simple”.
Regarding the material published by Little with respect to Hoye, Little posted the following comment on his personal Facebook page:
“On behalf of all the staff at The Credit Corp Group I would like to welcome our newest victim of butt rape, Jack Hoye. I’m looking Forward to sexually harassing you behind the stationary cupboard big boy”.
RESPONSE BY CCG
Upon being notified by CAP about the material published by Little on Facebook, CCG swiftly responded, conducting a meeting with Little on 28 June 2013 and resolving to terminate his employment, by way of letter, on the same day.
COMMISSION’S FINDINGS
In dismissing Little’s Unfair Dismissal Application, (and in doing so, finding Little’s dismissal was fair), the Commission found that:
Whilst Little was “perfectly entitled to hold views about any organisation and to express such views in the public domain”, he was not allowed to do so in a manner which injured CCG’s relationship with CAP.
The Commission stated:
“The fact the applicant made both Facebook comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee”.
CCG had:
- Implemented policies;
- Conducted staff training (being an employee induction at the commencement of Little’s employment); and
- Previously warned Little in relation to posting inappropriate comments on a third party’s website;
Such that Little ought to have been aware that he was prohibited from publishing material on Facebook which:
- Had the potential to damage CCG’s reputation, or its business; and
- Was likely to cause hurt and humiliation to one of CCG’s staff as being “grossly offensive and disgusting”.
As a young person who frequented Facebook, it was implausible that Little was not aware that his Facebook account was not set to “private”.
In any event, the maintenance of Little’s privacy setting was his responsibility.
IMPORTANCE OF LEGAL ADVICE
As mentioned above, the Commission’s decision only adds to a developing body of case law regarding employees’ use of social media.
With the advent of Facebook, Twitter, and a plethora of other social media platforms, it is important, now more than ever, that employers seek appropriate legal advice to ensure that they have effective policies, and staff training programmes, in place in order to effectively manage employees’ use of social media.
Should you, or someone you know, need legal advice about developing appropriate workplace policies surrounding employees’ use of social media, or any other issues mentioned in this article, please contact a member of our Workplace Solutions team on (07) 4616 9898.
This article is intended to provide a general summary only, does not constitute legal advice and must not be relied on as such. Copyright Murdoch Lawyers 2014.
