In case you missed it, read part 1 here.
Part 2 looks into the role social media plays in workplace disputes.
Changes in employment
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 and 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 1 – How not to handle a disgruntled worker
Ms Vosper was employed by a cake making business from October 2012 in a permanent part‑time capacity.
Ms Vosper’s employment spanned the sale of the business in July 2015 until it ended with her dismissal in September 2015.
The Beginnings of a Workplace Dispute
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, 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
The following day, 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, 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!”
Dismissal
The employer did not take kindly to the release of information. Late that night, 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 effect 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 with.”
Unfair dismissal claim
The dismissed employee challenged the termination of her employment by way of an unfair dismissal application to the Fair Work Commission (FWC).
The verdict
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
No Redundancy
The FWC rejected the 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 raised 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 was scathing of the employer’s arguments that the Facebook communications were derogatory and breached confidentiality, stating:
- There is nothing derogatory or confidential in these statements
- 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
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 raising workplace grievances 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.
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.
Email: brad@acumenlawyers.com.au
This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to provide legal advice. No reader should act or rely on the basis of any matter contained in this publication without first obtaining specific professional advice.
This article is copyright. For permission to reproduce this article please email your request to: info@acumenlawyers.com.au.
