On March 10, 2024, the Fair Work Commission (FWC) handed down a decision in an unfair dismissal case involving negative comments about a management team that were circulated through a social media group chat.
Our employee relations experts examine the case and what it means for businesses.
Case facts
The applicant, Breanna Roche, commenced with the Trustee for the Dolphin Hotel Unit Trust (the respondent) on April 24, 2021, as a casual employee.
In August 2023, the general manager and operations manager met with the applicant to discuss inappropriate behaviour and a decline in performance.
Specific allegations were raised in the meeting, with managers noting instances where the applicant had gone on breaks during busy periods, instances of tardiness, and customer complaints made against the applicant. The applicant agreed there had been a decline in her performance at work, which she attributed to the passing of a colleague in May 2023. She explained to the general manager and operations manager that she would aim to improve her behaviour and performance.
On October 31, 2023, the applicant attended a bar supervisor meeting focused on customer interactions and supporting decisions from the management team.
After the meeting, several attendees revealed to the respondent that the applicant had criticised the management team in a Facebook group chat, which was meant to be used for employees to ask work-related questions and invite each other to work events.
A manager spoke to the applicant about appropriate social media conduct, but they allegedly took no notice and continued to use the group chat to spread negative comments about management. Around November 9, 2023, the applicant also began unilaterally removing managerial employees from a different social media group chat. The respondent explained that they believed this was done because the applicant’s comments were of a nature that may have incited negative behaviour towards management and fostered a negative work environment.
On November 10 the general manager spoke to the applicant about how it was inappropriate to exclude certain employees from social media group chats, as well as using the group chats to encourage other employees to think and speak negatively about management and removed employees.
The general manager also noted that the applicant’s behaviour and performance at work had not improved since their initial meeting a few months earlier, and that this was unacceptable. Later that day, the respondent dismissed the applicant, stating in the termination letter that their main concern was the employee’s conduct in the social media group chats, which created a negative and hostile divide between management and front-of-house employees.
On November 17 the applicant lodged an unfair dismissal claim. As part of the claim, she explained that she did not believe the removal of managerial employees would be of any concern because the group chats were “social” and not “work” chats, evidenced by the fact that there were members of the chats that did not work for the respondent.
The decision
FWC Deputy President Bryce Cross found that both social media group chats were clearly related to work, and there was no justifiable basis for the applicant to describe the group chats as private social chats.
He also highlighted the fact that the applicant was already informed of her conduct in the group chats in the bar supervisor meeting on October 31, 2023, meaning she was aware that her comments were unacceptable before continuing the behaviour and removing managerial employees.
Deputy President Cross also found that the respondent did give the applicant opportunities to respond before it sent her the termination letter. He found the employee’s conduct a valid reason for dismissal, and her application was not successful.
On a separate note, the respondent raised the validity of the applicant’s ability to submit an unfair dismissal claim as she was a casual employee. Deputy President Cross outlined that employment must be on a regular and systematic basis rather than the hours worked, and that a roster of hours is strong evidence of this. The employee’s pay records showed that she worked between two to 39 hours each week, set out via a posted roster, for at least the previous six months and was therefore employed on a regular and systematic basis, with reasonable expectation for ongoing employment, for the duration of the qualifying period.
The applicant was therefore able to submit an unfair dismissal application despite being a casual employee.
Key takeaways
A key takeaway from this case is what is constituted as a “work” versus “private” social media group chat and what is considered appropriate conduct in these chats.
An employee may think a social media group chat is private, and they can speak about whatever they wish. What is said in these group chats are the employee’s business, and the employer cannot use comments to condone an employee’s conduct. However, if the group chat was created for employees to discuss work-related matters, then the group chat has a strong enough connection to work, and the employer can monitor what is said.
Employees should refrain from posting negative comments and fostering a divisive environment in these chats, as it could lead to disciplinary action, up to and including dismissal.
A second takeaway involves when a casual employee can submit an unfair dismissal application. Currently, casual employees who have had regular and systematic employment, with a reasonable expectation for ongoing work for at least six months, can submit an unfair dismissal application.
Casual employees who are employed on an ad-hoc basis are not able to apply, no matter how long they have been employed for. However, it is important for employers to note that the definition of casual employment and what constitutes a casual employee is changing on August 26, 2024. This means that a casual employee’s ability to submit an unfair dismissal claim will also change, and the way the legislation is applied in this case may not be the same after this date.
Due to specific circumstances for when an employer can take action against an employee for conduct in a social media group chat, as well as which employees can submit an unfair dismissal application, CCIWA strongly recommends that employers contact the Employee Relations Helpline on 08 9365 7660 or via [email protected] to seek further advice.
