The Case

Wilson v Ferguson (2015)

Ms Wilson and Mr Ferguson, who were both employees of Cloudbreak, were involved in a romantic relationship. In August 2013, Ms Wilson ended the relationship via text message. In retaliation, Mr Ferguson posted sexually explicit images and videos of Ms Wilson on Facebook. The images and videos were online for several hours, and many were seen by Ms Wilson’s co-workers.

Cloudbreak terminated Mr Ferguson’s employment as a result of the conduct. Ms Wilson sued Mr Ferguson for damages for emotional distress and loss of wages, alleging he had breached the implied duty of confidence he owed to her.

The Verdict

The Court found that Mr Ferguson had breached his duty of confidence by publicly posting the images and videos. The material, by its nature, had the necessary quality of confidence about it. In addition, it had been obtained in circumstances which imposed an obligation on him to maintain their confidentiality. Once the images and videos were posted on Facebook, they could be seen by a large number of co-workers.

The Court:

• ordered Mr Ferguson not to post the material again; and
• awarded Ms Wilson compensation of:
  • $35,000 for emotional distress; and
  • $13,404 for lost wages.

The Lesson

This case illustrates that if there is a sufficient nexus between out-of-work conduct and the workplace, an employer can take action as a result of that conduct.

In Wilson, Cloudbreak was entitled to take action and terminate Mr Ferguson’s employment because the images were:

• posted by an employee of Cloudbreak;
• taken of a co-worker; and
• seen by other co-workers.

This case also highlights the need for employers to be vigilant when out-of-work conduct can affect the workplace, e.g. via social media. To do this:

• remind employees to be mindful of any comments or other posts they make on social media about:
  • their co-workers;
  • you, their employer; and
  • other issues that may damage your reputation;
• ensure employees are aware of the potential consequences of engaging in such conduct; and
• ensure you have a comprehensive and up-to-date social media policy, which is made known to all employees.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.