That’s the Law: Can your rants on social media really get you fired?

Think before you type: Posting comments about an employer  is no longer a private matter but a public comment and legal repercussions may follow. Photo: FILE PHOTO
Think before you type: Posting comments about an employer is no longer a private matter but a public comment and legal repercussions may follow. Photo: FILE PHOTO

Given US President Donald Trump is running America largely by inappropriate Twitter posts, people may forget that the stream of consciousness and over-sharing invoked by social media may carry real consequences when it relates to your employment.

This goes beyond the naked selfie (although those probably won’t help your cause) and more to expressing opinions or making jokes that could get you fired, legally.

In Fitzgerald v Dianna Smith, Ms Fitzgerald, a jilted hairdresser, posted to her private Facebook account the following comment: “Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]”.

It seems the warning and lack of holiday pay were the least of her worries. Her employer fired Ms Fitzgerald one month after the post was published, alleging that the derogatory comment negatively affected the salon’s reputation.

Ms Fitzgerald subsequently lodged an unfair dismissal claim, which was ultimately successful.

Fair Work Commissioner Bissett found in favour of the employee but cautioned employees against work-related social media ranting: “posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment … it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.”

In Little v Credit Group Ltd, Mr Little was not so lucky. Mr Little was summarily dismissed for serious misconduct after his employer learnt of inappropriate comments posted to his Facebook page.

The fact that he did not identify his true employer on his Facebook page, saying that his occupation was a ‘Dinosaur Wrangler’ at ‘Jurassic Park’ afforded him no protection.

Mr Little posted a few comments on the Christians Against Poverty page, an organisation which had a working relationship with his employer. One choice comment was; “For reals bro, you should put a little more of funding into educating consumers on how the world works rather than just weaseling [sic] them out of debt, blah blah blah, give a man a fish/teach a man to fish.”

He also wrote a post welcoming a new employee of Credit Corp Group, where he wrote, amongst other things too vulgar to mention (and allegedly in jest), “… I’m looking forward [sic] to sexually harassing you behind the stationary cupboard big boy.”

Mr Little filed an application for unfair dismissal with the Fair Work Commission, arguing the comments were not inappropriate and even if they were, he was never warned for expressing an online opinion. In actual fact, he had received a warning for posting an inappropriate comment on a non work-related website albeit during business hours.

His employer argued that Mr Little breached the social media policy contained in his employee handbook. The Fair Work Commission upheld his termination, finding that his conduct seriously damaged the relationship between him and his employer, Credit Corp’s interests, potentially damaged the relationship between Mr Little and other employees, was incompatible with his duty as an employee, and constituted serious misconduct.

For employers, the cases illustrate that employers will be more successful if they have a social media policy in place.