Wednesday, 29 January 2020

Caught in the Web: Online social media posts undermined an employee’s adverse action claim

In the digital age, people have become accustomed to sharing the details of their lives and activities with their friends, families and the public. The last decade has created an explosion of social media activity, which has become a daily habit for many people, including in a work context.

There is a common misconception that if an employee shares a social media post outside of work hours on a private page, there will be no repercussions in respect to their employment.

However, employers may be entitled to take disciplinary action against the employee if the social media post damages the employer’s brand, the employment relationship and/or the employer’s trust in the employee. Further, the employer may be able to rely on social media posts in legal proceedings to demonstrate misconduct on the part of the employee, even where those posts were made on personal devices outside of working hours.

A recent decision of the Fair Work Commission demonstrates the willingness of the FWC to consider evidence of an employee’s online activity in determining an application. In this case,  a beauty therapist was dismissed by her former employer and filed a general protections application disputing her dismissal. The application was filed two weeks after the strict 21-day deadline required for the claim to be accepted by the FWC.

When the employee applied for an extension of time to the FWC, she provided a variety of excuses, including that she suffered from agoraphobia and extreme anxiety which resulted in her being unable to leave her home within the 21-day time period to submit her application, and also that her financial circumstances prevented her from having any access to the internet to enable her to file the application electronically.

However, the employee’s social media posts showed that she had posted several images of her out with friends with the caption “feeling fabulous” and at the pub of the Breakfast Creek Hotel for lunch around the time that filing was required. Not only did this undermine her claim that agoraphobia prevented her from going outside, but it also became apparent that the hotel provided free wi-fi at the pub.

Further, it was found that at the time the employee was seeking an adjournment of the matter on the basis that she was medically unfit to attend at the FWC, she had posted pictures of herself at a bar, celebrating the Melbourne Cup.

The FWC found that the employee’s social media posts formed a basis to question the truth of her claims, and dismissed the application.

This case will provide a level of confidence to employers who have evidence of wrongdoing on the part of employees on social media which may directly undermine the version of events being told by employees, particularly when matters escalate to the FWC.

Source: Mandy Lee Baillie v PJDH Pty Ltd t/a Brazilian Beauty Fairfield

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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