The Case

Besanko v R.B. Aquatics Pty Ltd T/A Swimmers (2021)

R.B. Aquatics Pty Ltd t/a Swimmers (Swimmers) employed Ms Besanko as a casual swim instructor. She was also a casual swim instructor for a competitor swim school, Melton Swim School. However, most of her work was with Swimmers.

Swimmers summarily dismissed Ms Besanko when it discovered she had provided a Facebook recommendation for Melton Swim School in a private Facebook group. Swimmers alleged Ms Besanko had engaged in serious misconduct and damaged its business. It was particularly upset that throughout the COVID-19 pandemic it had provided Ms Besanko with JobKeeper payments and that in return she had not reciprocated that loyalty.

Ms Besanko filed an unfair dismissal claim in the Fair Work Commission (FWC).

The Verdict

While the FWC found Ms Besanko’s actions were “foolish, naive and ill-judged and a regrettable example of an employee using social media without carefully considering the potential consequences for herself or her employer,” it was not persuaded that her conduct was “wilful or deliberate in the sense that it was done with the intent or knowledge that it might cause harm” to Swimmers. Nor was it “so grave or repugnant as to be destructive of the employment relationship”.

The FWC’s reasons for these findings were:

• Ms Besanko did not denigrate Swimmers on the Facebook post;
• there was no evidence of harm or damage to Swimmers’ business;
• the recommendation was published in a private Facebook group and not broadly;
• it was not evident from the post that Ms Besanko worked for Swimmers;
• the elements of good faith and fidelity had not been breached; and
• Ms Besanko had been naïve in thinking that publishing a recommendation for one of the swim schools she worked for was not inconsistent with her obligations to both.

The FWC found the dismissal was harsh, unjust and unreasonable, there was not a valid reason for the dismissal, or a proper process enabling Ms Besanko to provide a response. However, the FWC considered Ms Besanko’s conduct was worthy of other disciplinary consequences, and as she had mitigated her loss with other employment, no compensation was awarded to her.

The Lessons

Employee conduct in their private time sometimes has a bearing on their employment. However, it is important to properly weigh the impact, the seriousness of the conduct and whether any damage has been caused to the business. It is also important, when faced with an unfair dismissal, to consider whether the employee has suffered any financial loss from the dismissal or if they have obtained alternative employment.

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.