After-hours Facebook posts can still lead to dismissal

Disparaging after-hours Facebook posts can still lead to dismissal 

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Welcome to the first Executives On-The-Go for 2014.

In this update we cover:

  • After-hours Facebook posts that reflect poorly on a company can lead to dismissal.
  • Employers need to ensure their sexual harassment policies, procedures and training include contractors and non full-time staff.
  • Anti-bullying laws commenced on 1 January 2014.

Disparaging after-hours Facebook posts can still lead to dismissal 

A recent Fair Work Commission matter has underlined the need for employers to ensure their staff understand the possible consequences of making inappropriate comments on social media – even in their personal time and when they are not representing the company.

The Commission found the dismissal of an employee for making disparaging remarks on Facebook about an organisation his employer had dealings with was justified.

“The fact the applicant made both Facebook comments in his own time is of no consequence,’’ said Deputy President Peter Sams about the employee posting negative comments on the Facebook page of the organisation.

The Commission rejected the former employee’s argument that his Facebook profile was private and that he was entitled to his personal opinions.

“The applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability,’’ said Deputy President Sams in his ruling.

For those of you who want to explore social media risks in more detail you can download our Employer’s Guide to Managing Social Media Risks.

Sexual harassment policies, procedures and training need to include contractors 

A Federal Court decision last month, which resulted in a $476,000 damages payment to a victim of sexual harassment, has highlighted the need for employers to ensure that their sexual harassment policies, procedures and training cover all workers – including contractors.

The Court found that a female employee had resigned from her job and suffered a psychiatric illness as a result of being sexually harassed by a temporary contractor hired by the company, who had also engaged in “unwelcome sexual intercourse” with her after a company drinks function.

In the case, the contract accountant unsuccessfully argued he was not subject to the Sex Discrimination Act 1984 given he was a contractor.

The Judge said the contractor was subject to the Sex Discrimination Act given he was a “workplace participant”.

The case also serves as a reminder that the workplace can extend beyond the front doors of an office.

The contractor unsuccessfully argued the sexual intercourse occurred outside the workplace because the location of the incident was in the corridor outside the front doors of the office.

“The fact that the activity occurred out of working hours or that attendance was not for a work related purpose, does not affect the corridor’s characterisation as the workplace,’’ said Federal Judge Mordecai Bromberg in his decision.

The contract accountant was ordered to pay the $476,000 in damages to the female staff member he sexually harassed. This was on top of an undisclosed amount the victim received from her former employer and the firm that employed the contractor.

Anti-Bullying Laws commence

The start of 2014 saw the introduction of new national anti-bullying laws that now allow workers to take any workplace bullying complaints directly to the Fair Work Commission.

Any worker who reasonably believes he or she has been bullied at work can make an application (for a $65.50 fee) to the Commission to order the bullying to stop.

Under the new anti-bullying laws – as part of amendments to the Fair Work Act 2009 –  the Commission can also apply to the Federal Court to impose fines on employers who do not act to stop bullying (after an initial order has been made).

The Commission  has sent a strong message to workers that they should try to resolve the issues internally in the workplace or through state work, health and safety regulators first, before making a complaint to the Commission. Therefore, it is more important than ever for all employers to have a clearly defined policy and set of procedures to deal with workplace bullying – least they receive an unwelcome order from the Commission.

This includes providing regular training for staff and maintaining records of all training conducted, and having incident management systems in place to respond appropriately should such an incident occur. For an employer to properly protect its workers and itself from the risks associated with bullying in the workplace it must not only have the relevant policies in place but it must be able to prove that it has implemented them properly.

Employers need to be mindful of the ease with which workers can now make a bullying complaint to the Commission (they can do so by email). This will no doubt increase the chances of employers facing potential bullying claims from their employees.

How can CompliSpace help?

CompliSpace has recently published an upgrade to its Bullying, Equal Employment Opportunity and Harassment policies and training courses.

CompliSpace’s comprehensive range of cost effective human resources policies, procedures, training and testing modules, ensure that managers and staff know what is expected of them and have key tools and information at their fingertips at all times. This enables a business to meet its workplace relations obligations while building a positive corporate culture, capturing knowledge and saving time. For more information, contact us on the details below:

P: +61 (2) 9299 6105 (Sydney) / +61 (8) 9288 1826 (Perth)



This blog is a guide to keep readers updated with the latest information. It is not intended as legal advice or as advice that should be relied on by readers. The information contained in this blog may have been updated since its posting, or it may not apply in all circumstances. If you require specific or legal advice, please contact us on (02) 9299 6105 and we will be happy to assist.

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