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In the age of the “social media rant”, stressed, malicious or simply careless employees often make damaging remarks about their employers.

No longer confined to discreet pub conversations, such comments are amplified many-times-over by popular media outlets, particularly social media.

Inflammatory remarks that go viral have the potential to inflict severe reputational damage to an employer’s business.

A recent case[1] is a classic example of a situation where the employee was caught disclosing confidential information, admitted his transgressions but was found to have been unfairly dismissed following a bungled workplace investigation.

Background

The facilities manager of a Victorian youth detention centre decided to anonymously divulge confidential work information to a popular morning breakfast radio program’s “Rumour File”.

In an attempt to agitate change at his workplace, the employee told the radio presenters live on air he had heard a rumour that razor wire was going to be installed to prevent detainees from escaping the youth detention centre.

Far from a rumour, this information was accurate, confidential and known by the employee through his work duties.

By repeating the information, the employee breached not only two employment policies but also state legislation, under which he was later charged by Victoria Police.

Approached by his employer, the employee admitted to the misconduct and immediately expressed genuine remorse at his act of stupidity, along with a number of possibly mitigating factors.

Following his ensuing dismissal for serious misconduct, the employee lodged an unfair dismissal claim.

The Decision

The Fair Work Commission was quick to find that there was a valid reason for the employee’s dismissal.  Unfortunately for the employer, the FWC also found a raft of procedural defects with the employer’s workplace investigation resulting in a decision that the dismissal was harsh.

The FWC observed critically that the employer had:

  • Failed to properly investigate all mitigating factors;
  • Failed to provide notes to the employee of the investigative meeting;
  • Failed to provide the employee with a proper opportunity to fully respond to the allegations;
  • Failed to follow internal HR procedures;
  • Failed to take account of the employee’s genuine remorse and admission of guilt; and
  • Failed to take account of the employee’s long, unblemished work record and mental state at the time of the misconduct.

By the employer’s own admission, there was essentially no investigation; instead contending that it was exempt from conducting a complete workplace investigation required by its internal HR policies because the employee admitted to the wrongdoing.

The FWC was scathing of the employer’s position, stating that an employer cannot simply put allegations to an alleged wrongdoer and then fail to consider any explanations for the wrongdoing that may be put forward.

The FWC commented that common sense and procedural fairness dictated that there is a requirement, once an explanation is sought, to investigate that explanation.

Lessons for Employers

For employers in the digital age there is an ever present risk of disgruntled employees making ill-considered or malicious comments through media avenues which then go viral.

With news reporters avidly monitoring social media for fodder, a bad publicity disaster lies just around the corner for unwary employers.

What started out as a straightforward HR investigation into an uncontested, serious breach of confidentiality obligations ended up with an adverse legal finding and public embarrassment for the employer.

The employer’s failure to carry through with an investigation following the employee’s uncontested misconduct was ultimately its undoing.

As evidenced by this case, procedural mistakes all too often leave employers such as this one red-faced and out of pocket.

Do you know how to investigate social media misconduct?

Our Social Media Misconduct Investigation Kit is an essential “how to” companion, walking you through the process of investigating an incident – from receiving a report of social media misuse to confidently making a decision at the conclusion of your investigation.

[1] Ryan v Department of Human Services [2013] FWC 4060 (9 July 2013)

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