Dismissal for online misbehaviour: a "valid reason" and procedural fairness still may not be enough

The federal unfair dismissal jurisdiction provides remedies to former employees whose dismissal is found by the Fair Work Commission (FWC) to be harsh, unjust or unreasonable. The first factor that the FWC must take into account when considering whether a dismissal was harsh, unjust or unreasonable is whether there was a "valid reason" for the dismissal (it will also assess whether the dismissed employee was afforded procedural fairness, and any other matters it considers relevant).

The FWC has again considered whether a "valid reason" and procedural fairness will protect a dismissal following online misbehaviour in the recent case of Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622. Murkitt demonstrates the caution that employers must take to reduce the risk of falling afoul of the Fair Work Act when disciplining employees who have engaged in online misbehaviour.

Online behaviour, real-world employment consequences

The lawfulness of a dismissal following online misbehaviour has been considered by the FWC in recent years. In Singh v Aerocare Flight Support Pty Ltd, the FWC found that an employee's Facebook post that said that "we all support ISIS" did not constitute a valid reason for dismissal. On the other hand, in Little v Credit Corp Group Ltd, the FWC found that an employer had a valid reason to dismiss an employee after the employee posted on Facebook a threat to sexually harass a colleague.

In Little, the FWC also found that the dismissed employee was afforded procedural fairness by his employer. This, combined with the existence of a valid reason for the dismissal, resulted in the FWC finding that the dismissal was not harsh, unjust or unreasonable.

Ms Murkitt's employment and the Facebook post

Ms Murkitt commenced work for Alarmnet in 2005. Under her most recent contract of employment, Ms Murkitt agreed to "not intentionally do anything that is or may be harmful to the Company". Alarmnet also had a social media policy requiring employees to refrain from posting inappropriate material "which included material that was intended (or could possibly) cause insult, offence, intimidation or humiliation to the Company… or is defamatory and could adversely affect the image, reputation, viability or profitability of the Company".

From 5 December 2018, Ms Murkitt was absent from work as a result of a medical condition which was determined to be compensable under workers compensation legislation. In February 2019, while on workers' compensation, Ms Murkitt published the following Facebook post:

"I use to love my job at Alarmnet Monitoring. I use to love that we were owned by a family... Then along came 3 Victorians who bought the company from the family… These 3 Victorians came over and changed everything. They have more money and think they have more power coz they are from Melbourne. Shame on you. We use to be so proud of the service we gave our customers… they don't care for clients, they don't care for their staff…. really really sad…"

Following the Facebook post, representatives of Alarmnet met with Ms Murkitt to inform her that she had engaged in serious misconduct and that her continued employment was at risk. After the meeting Alarmnet's representatives reached the view that Ms Murkitt was aware of Alarmnet's social media policy, her conduct was deliberate and she had no remorse for her actions. Alarmnet proceeded to terminate Ms Murkitt's employment.

Valid reason and procedural fairness

The FWC found that Ms Murkitt's Facebook post constituted a "valid reason" for her dismissal on the basis that it breached her contract of employment and Alarmnet's social media policy. The FWC also found that Ms Murkitt was afforded procedural fairness because, for example, she was given the opportunity to respond before the termination took effect.

Why did the FWC find that Ms Murkitt was unfairly dismissed?

Despite finding that Ms Murkitt's Facebook post constituted a "valid reason" for her dismissal and that Alarmnet afforded Ms Murkitt procedural fairness, the FWC decided that the dismissal of Ms Murkitt was not proportionate to her online misbehaviour. The FWC reached this conclusion by giving weight to the fact that Ms Murkitt:

• had accumulated almost 15 years of service;
• was not the subject of any formal disciplinary action before she made the Facebook post; and
• had a medical condition which contributed to explaining her decision to make the Facebook post.

In these circumstances, the FWC concluded that Ms Murkitt's dismissal was harsh and that she was unfairly dismissed.

Lesson for employers faced with this situation

The decision serves as a reminder to employers that having a "valid reason" to dismiss an employee and affording procedural fairness to dismissed employees does not necessarily protect them from a successful unfair dismissal case.

Employers should ensure that they consider a broad range of factors before an employee is dismissed for online misbehaviour. This includes an employee's length of service, prior performance and any associated medical conditions, and procedural fairness, which includes factors such as whether:

• the dismissed employee was notified of the reason;
• the dismissed employee was given an opportunity to respond; and
• there was any unreasonable refusal to allow the dismissed employee to have a support person present to assist any discussions relating to dismissal.

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