The Case

Murkitt v Staysafe Security T/A Alarmnet Monitoring (2019)

A longstanding employee of nearly 15 years was dismissed after writing a Facebook post denigrating the new directors. Her post stated: “then along came 3 Victorians who brought the company from the family … they have more money and think they have more power coz they are from Melbourne. Shame on you … They don’t care for clients. they don’t care for their staff”.

Although the employee’s Facebook page was ‘private’ and limited to her Facebook friends, one of her colleagues who saw the post leaked it to the company.

The employer had a social media policy within its Policy and Procedure Manual, which was made available to all employees. Her contract also included a provision stating that she “not intentionally do anything that is or may be harmful to the Company”.

The company requested the employee attend a meeting to discuss the post, advising that they considered the conduct to be serious misconduct and that her employment was at risk. Upon attendance, the employer formed the view that the employee was aware of the social media policy, the conduct was deliberate and that she was not remorseful.

At the time, the employee was suffering a psychological medical condition arising from the death of a close colleague. At trial, the employer stated that it had taken into account the employee’s medical condition, and considered alternatives to dismissal, but had determined to dismiss the employee due to her conduct and lack of remorse.

The Verdict

The Fair Work Commission (FWC) found that the Facebook post was in breach of her obligations under the contract and the requirements of the social media policy, and that therefore there was a valid reason for her dismissal. However, the FWC also found that the dismissal was harsh, as the employer did not sufficiently take into account the employee’s medical condition and its impact on her conduct. It found that the dismissal was not a proportionate outcome and was harsh given:

• the employee’s medical condition;
• the employee’s length of service;
• the lack of any previous performance issues; and
• the fact that the Facebook post was a single event that resulted in no financial harm to the employer.

However, the FWC also declined to provide compensation given the employee "had no intention of returning to work, based on her advice from her medical advisors" and would not have continued to work if she had not been dismissed, given the workers’ compensation payments received and her misconduct.

The Lessons

This decision confirms the position that prior to terminating the employment of a longstanding employee with no prior conduct issues, significant procedural steps should be taken, particularly where the employer is aware of medical conditions that might affect an employee’s conduct.

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.