SHOULD YOU BE SACKED FOR CRITICISING YOUR EMPLOYER ON SOCIAL MEDIA

SACKED FOR CRITICISING YOUR EMPLOYER ON SOCIAL MEDIA

With social media playing a large part in the way humans interact and communicate with each other, it is easy for an employee to criticise their boss through a social media platform. An employee may have had a bad day at work where their boss has acted harsh towards them. In order to seek comfort and let off steam, the employee may turn to social media and message their friend privately and rant to them about their boss. Alternatively, the employee may have posted a story on Instagram complaining to their followers about the day they’ve had.

Or perhaps it wasn’t the boss the employee was criticising, but rather the boss’s wife, or perhaps a colleague or the business which they work for.

This raises the question of whether an employee can be sacked for criticising their boss/company they work for on social media.

The short answer to this question yes. However, this is determinant upon the nature of the comment/post being made and whether the comment was made in a private or public setting. Additionally, just because an employee has been dismissed for making such a comment does not mean the dismissal was fair.

Nature of Comment

It’s important to consider the nature of the comment made. For example, if the comment involved a lot of name calling, swearing, threats and the use of specific names, then the employee may be in trouble. Despite the freedom of speech and opinion we have in Australia, a comment made in such a such a circumstance can nonetheless be grounds for a dismissal.

In Besanko v zr.B. Aquatics Pty Ltd t/a Swimmers, Ms Besanko worked casually as a swim instructor for Swimmers as well as another business, Melton Swim School. Ms Besanko was part of a private community Facebook page in which a user posted looking for recommendations of a swim school. Ms Besanko had replied to the post commenting “Melton swim school!”

The manager at Swimmers had seen the comment and dismissed Ms Besanko as they believed she was acting disloyal, unsatisfactory and was discriminating against Swimmers.

The commission found that although Ms Besanko’s comment was “foolish, naïve and ill-judged,” it was not wilful, deliberate, or done with the intent or knowledge that it would cause harm to Swimmers. As such, the commission found her conduct was not serious enough to amount to a dismissal.

As such, the intention behind the comment and the affect the comment has had on the business, should be taken into account, when considering whether to terminate the employment.

Comments about a colleague

Sometimes a comment made about a colleague/ friend may also lead to a dismissal. In Thomnpson v 360 Finance Pty Ltd, Mr Thompson worked for 260 Finance and made a post on his personal Facebook page. The post was an image of himn and a female colleague with a leaky washing machine in the background, with the post saying “You pulled out right? Yeah, of course.” The female colleague originally approved the post but later asked Mr Thompson to remove it from his Facebook wall. Mr Thompson removed the image but then made a second post with the words “That moment after you’ve dropped a meme with the aim to upset some c*nts…And you get to hear, c*nts are upset.”

Mr Thompson was dismissed from 360 Finance for misusing social media, sexual harassment and failing to adhere to 360 Finance’s company policies.

The commission held that Mr Thompson’s behaviour was plainly inappropriate and found the dismissal was not harsh, unjust or unreasonable.

As such, it can be said that even comments posted privately involving a work colleague, can also lead to a dismissal. Furthermore, the commission will consider wearing a serious act of inappropriate behaviour on social media in some circumstances.

Young women using social media while working

When can I criticise my employer on social media and not get fired?

In America, it is illegal for an employee to be fired for posting about their working conditions, pay, hours, assignments, difficult supervisors or dress code. Employees who complain about these issues on social media and who are part of a concerted activity or joining with fellow employees to improve working conditions, cannot be fired.

In Australia, employees have the right complain about their working conditions or pay. However, this complaint should be made directly to your employer, manager or HR, before deciding to complain to social media.

What If I am already fired? Can I complain about my ex- employer then?

You should be careful not to jump the gun and go straight to social media and complain about your unfair dismissal to your hundreds of followers. This is important, especially if you are planning on lodging an unfair dismissal claim. If you are successful with your unfair dismissal claim in the Fair Work Commission, you may be required to sign a Deed of Release. The Deed of Release is likely to her mutual non-disparagement terms where you cannot talk bad about your previous employer, and they cannot degrade your work ethic or talk bad about you either. If you fail to uphold the requirements in the Deed of Release, then your ex-employer may decide not to uphold other aspects of the Deed conversely.

Additionally, if you had criticised her ex-employer before lodging an unfair dismissal claim, they may not bother to offer any form of compensation considering your conduct. Alternatively, you should be weary not to criticise your employer or ex-employer in anyway that may lead to them suing you for defamation. Defamation is when a person (employee) has communicated information to a third-party (social media followers), and that information identifies the plaintiff (employer/manager/business) and the information conveyed negative accusations about them.

Private vs Public

The next question you may be thinking is whether you can get fired for criticising your boss during a private conversation.

There is no law against an employee venting/ranting to a friend about their boss through a private social media chat. That said, you should be careful as to who you are having this conversation with. It is one thing to let out your frustration and emotions to your colleague, but its another thing when they inform your boss what you have been saying.

Usually, in a larger company such private conversation may be delt professionally with a mediation type meeting between you and your boss to air out any negative energy between the two. However, in a small business, your boss may end up dismissing you because they have “lost trust” in their relationship with you. Unfortunately for you, once a small business owner dismissing and employee for loss of trust, it would be difficult to claim that you had been unfairly dismissed.

Alternatively, if the employee had criticised their boss/ employer publicly through a Facebook post, LinkedIn post, Instagram post, etc, there is every chance the boss will hear or see about it. As such, an unfair dismissal regarding the post will come back down to the nature of the comments made. Whether that include swearing, name calling, accusations, etc.

Warning or dismissal?

A lot of the time a comment made about a boss on social media may result in a warning instead of a dismissal. This will depend upon the nature of the comment made, the position of the employee within the company, how large the business is, whether the comment had caused a decrease in business’s performance/sales/customer satisfaction.

It may also depend largely on whether or not the employee is apologetic for their behaviour and whether or not the employee has a good work record.

If an employee already has 2 or 3 warnings for misconduct, then it is more likely they will be dismissed for making the critical post on social media.

Whereas, if an employee had made a minor critical comment about a boss in a private social media chat and had prior warnings, then it is likely the employer will provide them with a warning instead. As such, this is a case-by-case analysis and will depend on the circumstances at-hand.

Social Media Policy

A lot of businesses are likely to have social media policies that sets out their boundaries of their employees posting on social media and the likely disciplinary action that will occur as a consequence.

For example, an employee was dismissed from Apple Retail (UK) Ltd for making derogatory comments on social media about the company. The tribunal had found that Apple made it very clear in their policies and training that protecting their image was a “core value” to the company. As such, the dismissal was found to be fair on those grounds.