Social media seemingly provides a temptation that too many employees are unable to resist and in this case, resulted in social media misconduct on LinkedIn.
The ease with which employees are able to disseminate information quickly and ‘connect’ with many people at once is causing major headaches for employers without sufficient social media risk management strategies.
However, as this recent unfair dismissal case highlights[1], the prevalence of social media in our personal and work lives does not negate the fundamental obligations that arise between employee and employer.
Background
A trusted and respected senior interior designer was summarily dismissed from his employment in January of this year for serious misconduct.
The alleged misconduct occurred when the employer sent a group email sent via professional networking social media website LinkedIn inviting “clients, colleagues and friends” to consider the employee’s personal design service (apparently expanding to a full-time practice) for any upcoming design projects that may arise.
The following day, after a short workplace investigation, the employer informed the employee that his employment had been terminated as a result of the email he had sent the previous evening. The dismissal was later confirmed by email.
The employee sought to overturn his dismissal by way of an unfair dismissal application to the Fair Work Commission.
The dismissal hearing
At the unfair dismissal hearing before the Fair Work Commission, the following (opposing) arguments were aired.
According to the employee:
- his employer had been aware of the private work he conducted on his own behalf;
- the email had been sent to industry professionals with whom the employee had worked prior to his current employment;
- he had made several attempts to discuss with his employer future opportunities within the business to no avail and decided to progress his career through other channels;
- the email actively solicited new business for his current employer and only where appropriate for his own business; and
- both directors who agreed to his termination were “connections” on LinkedIn and had full access to his profile and current updates.
The employer held a different view. It argued:
- multiple clauses of the employee’s employment agreement prohibited the employee from undertaking work that would compete with the employer, adversely affect the employer’s reputation or hinder the performance of workplace duties;
- the employment agreement also required the employee to act honestly and in a manner consistent with his employment;
- the employee was a significant part of the business, as a full-time senior designer;
- no reasonable person could construe the email as other than a direct attempt to solicit business from a pool of clients associated with the employer; and
- the email was incompatible with the employee’s duties to his employer and warranted summary dismissal.
The Decision
The Commission was quick to find a valid reason for the employee’s dismissal.
The email sent by the employee via LinkedIn breached fundamental employment obligations – namely a conflict of interest by soliciting work from current clients of his employer.
The Commission observed that while the employer did not object to the employee performing some work on a private basis, the email went beyond what had been permitted and the knowledge of private work did not waive the employer’s right to object to the email.
The employee was notified of the reason for his dismissal and while he was only given a limited opportunity to respond, the employee did not deny sending the email.
The Commission did not give any credibility to the resulting attempts at explanation by the employee and suggested that any explanation given would not have had an impact on the employer’s decision.
In the Commission’s view the employee was in a position of trust and his conduct breached multiple clauses of his employment agreement. His actions justifiably caused the employer to lose confidence in the employee.
The Commission agreed that deliberate and active solicitation of his employer’s clients amounted to serious misconduct and was inconsistent with the continuation of the interior designer’s employment.
The verdict? The employee’s dismissal was neither harsh, unjust or unreasonable.
Lessons for Employers
Social media misconduct can come in many forms and its no ‘LOL’ matter.
Employers need to respond quickly and properly investigate a report of misconduct involving social media.
This employer had a clear-cut allegation/evidence of misuse and was able to act swiftly with its investigation. However, the nuances of social media misuse mean that investigations won’t always be as straightforward.
Responding tardily to a report of social media misconduct or carrying out an otherwise flawed workplace investigation risks the integrity of any disciplinary action taken if unfair dismissal litigation ensues.
The employer’s effective social media misconduct investigation meant that it was able to protect the good will through the relationships it had built with clients and to defend the unfair dismissal claim brought by the misguided employee.
[1] Pedley v IPMS Pty Ltd T/A peckvonhartel [2013] FWC 4282 (2 July 2013)
