Beware the trap of the disgruntled employee – Part 2
A takeover of an established business can be fraught with anxiety for a new employer and the remaining employees.
The previous trusted employer-employee relationship is gone.
New relationships take time to build.
Changes to pre-existing arrangements may not go over well with the remaining employees.
A disgruntled employee who takes to Facebook requires a careful response – as today’s article shows.
Case 2 – How not to handle a disgruntled worker
The Employee in question, Ms Vosper, was employed by a cake making business from 24 October 2012 in a permanent part‑time capacity.
Ms Vosper’s employment spanned the sale of the business on 3 July 2015 until it ended with her dismissal in September 2015.
The Beginnings of a Workplace Dispute
Late on 21 September 2015, at the completion of her workday, Ms Vosper was issued with one weeks’ notice of termination from her part time employment.
Ms Vosper was told that her part time role was “not in line with the business staffing needs.”
In the same meeting (21 September), Ms Vosper was offered new employment but as a casual and on a lower base pay rate (excluding casual loading).
Ms Vosper advised the employer that she did not wish to accept the offer of casual employment.
Facebook message 1– a storm brews
On the morning of the next day (22 September) Ms Vosper sent a Facebook message to her sister (Ms King) – the prior owner of the business.
Ms Vosper advised of termination of her permanent employment and the corresponding offer of a casual position.
During the ensuing Facebook communication exchange, the former owner, Ms King, expressed her displeasure at what had occurred.
Facebook message 2 – a not so happy goodbye
On the same day (22 September) Ms Vosper published a private Facebook message as follows:
“I just wanted to let you know that I am finishing up at Angie’s at the end of the week. Time to move on with a new focus. Thanks for all the hard work you have given Karen and I.”
In reply to a “what happened” response Ms Vosper said:
“Angie and Lloyd did my 3 months review and explained that they no longer want to have the part time position and gave me a weeks notice. They offer me casual however I have decided to move on.”
Facebook message 3 – the former owner weighs in
On the same day (22 September) Ms King (the former owner), sent the following message to another employee of the business:
“Hey do you mind if I ask if everything is ok at work!?? Robyn isn’t being treated very well at all. And I was just hoping you were doing ok!”
The employer did not take kindly to the release of information.
Late that night (22 September), the employer sent a dismissal letter by email to Ms Vosper.
The letter advised Ms Vosper that she was dismissed without notice as of 21 September 2015.
In part, the letter stated:
“… you have left us with no alternative but to terminate your employment with immediate effective due to you breaching our request for Confidentiality less than 24 hours after specifically discussing this with you during your review yesterday evening. …
… we made it clear that any discussion with anyone about anything to do with the business that could be seen as derogatory, in particular your sister with whom we were experiencing difficulties at present with but we were doing everything we can to not involve with you.”
Unfair dismissal claim
The dismissed employee challenged the termination of her employment by way of an unfair dismissal application to the Fair Work Commission.
The FWC ultimately found the dismissal to have been unjust and unreasonable and thus – unfair.
During the hearing of the matter, the employer put forward a number of arguments to justify the dismissal including:
- alleging redundancy of the employee’s position
- performance concerns
- misconduct arising out of an alleged breach of confidential information
The FWC rejected employer’s assertion that Ms Vosper was made redundant.
The FWC found that restructuring changes were not so substantial as to render Ms Vosper’s position no longer being required to be performed by anyone.
No unsatisfactory performance
The employer had put forward performance concerns during the hearing including alleged lateness, and inadequacy of cake making and decorating skills.
In finding that there was no basis for finding the dismissal was due to performance, the FWC recognised that:
- the alleged lateness incident was not raised with the employee
- no warning had been issued about poor performance
- the employee was not provided with any opportunity to improve in response to cake making concerns
- The employer’s offer of further training only occurred at the time of the dismissal
What about the Facebook communications?
The FWC summarised the employee’s communications to others (via her Facebook page) as follows:
- Ms Vosper had been dismissed from her employment because the new owners had told her that they no longer want to have the part time position and she was being forced to casual employment.
- She had rejected casual employment and had decided to move on.
- She had been given her one weeks’ notice.
The FWC was scathing of the employer’s arguments that the Facebook communications were derogatory and breached confidentiality.
“There is nothing derogatory in these statements.
There is no confidential business information in these statements.
No reasonable person could believe that this information was either derogatory or confidential business information.
An employee has a right to complain about their employment rights and their treatment at work.
We do not live in a society where employees are prohibited from discussing their employment status or their treatment at work with others.”
The FWC commented disapprovingly that the employer did not discuss its concerns with the employee about perceived derogatory remarks or an inappropriate release of confidential business information.
The FWC considered that there did not appear to have been any reasonable basis for the employer’s concern of a breach of confidentiality.
Even if there were a reasonable basis for concern, the FWC commented that it was doubtful that the concerning conduct would have amounted to serious misconduct.
Lessons for employers
- An employee’s airing of workplace dirty laundry may not necessarily involve a release of confidential information
- An employee is entitled to complain about their employment rights and workplace treatment
- Employers should have a clear process for the raising of a workplace grievance and the resolution of complaints
- An employee is entitled to be disgruntled – providing it does not manifest in misconduct or unsatisfactory performance
- Think before acting
 Vosper v Solibrooke Pty Ltd  FWC 1168 (1 March 2016)
About the author
Brad Petley, is the Principal of Acumen Lawyers, a boutique employment and safety legal practice based in Brisbane, but happily solving workplace issues for clients Australia-wide.
Brad is a QLS Accredited Specialist in Workplace Relations Law.