An employee who took to Facebook to advertise her disgust with new business owners was unfairly dismissed, the Fair Work Commission (FWC) has ruled.

The control room operator had been with her employer for almost 15 years when she posted the following on Facebook:

“I use to love my job at Alarmnet Monitoring. I use to love that we were owned by a family for over 30 years. Then along came 3 Victorians who bought the company from the family who owned it. Well Adelaidedians [sic], I love Adelaide. These 3 Victorians came over and changed everything. They have more money and think they have more power coz they are from Melbourne. Shame on you. We use [sic] to be so proud of the service we gave our customers. Customers were happy with us…… it is a thankless job but what clients would say to us in the control room was lovely. This is what customer service is all about. You give what you would like yourself. But this musn’t [sic] happen in Victoria. They don’t care for clients. they don’t care for their staff…. really really sad… Keep going all you family run businesses, I back you ALL the way…”

At the time the employee posted the comments, she was receiving workers’ compensation for a psychological injury, “adjustment disorder with depressed mood”, which arose from the conduct of the management.

This included how they handled the death of another employee.

The deceased employee, who was a close colleague of the dismissed employee, was killed on his way home from work. The dismissed employee believed that the employer did not adequately support its employees after the incident, which significantly impacted her.

Depression no excuse employer claims

While the employer said it accounted for the employee’s medical condition before summarily dismissing her for misconduct, it submitted the following in the hearing:

• the employee was aware of and understood the social media policy;
• the employee had breached the obligation under her contract of employment;
• the Facebook post was intentional;
• the employee’s actions constituted serious misconduct;
• the employee was advised of the valid reason and given an opportunity to respond;
• no remorse was shown;
• the employee was afforded procedural fairness;
• Alarmnet does not employ a dedicated HR person;
• since the dismissal, the employee has received 100% of her wage in workers’ compensation payments and will not sustain any loss;
• the FWC should consider the employee’s post-dismissal conduct; and
• any award of compensation should be reduced due to misconduct.

The employer also noted the employee telling a senior manager she “had heard a lot about him and none of it was good”, as well as the same manager and other employees receiving “a large number” of “harassing and intimidating” emails following the employee’s dismissal.

One of the emails she sent to the employees complained that someone out of three potential workplace friends had “leaked” her Facebook post to “the bosses” and that she was looking forward to meeting with them to “hash it out”.

Employer should have seen the bigger picture

In making his decision, FWC Commissioner Christopher Platt considered the following matters:

• the employee of almost 15 years was not the subject to any previous disciplinary action;
• the employee was upset at how the employer handled the death of her colleague and the way it was managing its employees;
• the employee was suffering from a psychological condition at the time that the conduct occurred and at the time of the disciplinary meeting;
• a senior manager took into account the employee’s medical condition, but as she showed no remorse or responsibility for her actions, he determined dismissal was the appropriate outcome;
• the employer appeared to insufficiently take into account the impact of the employee’s medical condition at the time it determined to dismiss her; and
• the Facebook post was a single event, and did not result in any financial harm to the employer.

Commissioner Platt acknowledged that the employee’s medical condition did not excuse her conduct, but said it went “some way to explain it”, and while her Facebook post had caused “disharmony” in the workplace, he thought that “dismissal in the light of [the employee’s] medical condition, length of service, the lack of any previous performance issues was not a proportionate outcome”.

However, Commissioner Platt believed that financial compensation would be inappropriate, as the employee submitted she “had no intention of returning to work, based on her advice from her medical advisors”.

“In all the circumstances, I do not consider that payment of compensation is appropriate because of my view that [the employee] would not have continued to work for Alarmnet if she had not been dismissed, the workers’ compensation payments received and her misconduct,” he said.

“I therefore decline to order any remedy, notwithstanding that I found [the employee] was a person protected from unfair dismissal and had been unfairly dismissed.”