26/08/2013

In a recent decision the Fair Work Commission dismissed an application for unfair dismissal where the employee was terminated on the contents of a group email sent via LinkedIn.

The decision is a reminder that employees should consider carefully what postings are made on social media and that all employers should also consider the impact on their business of any employee’s postings.

The essential facts of the case are as follows:

•    Senior employee employed full time for 2 years.
•    Contract of employment included a clause that the employee not undertake work that competed with the employer.
•    The employee did take on small jobs during after-hours and weekends, that the employer was aware of, but those jobs did not compete with the employer’s business.
•    On 14 January 2013, the employee sent a group email via LinkedIn that included the following:

“Hello Clients, Colleagues and Friends,
As you may be aware, I have been running a part time design service called Reveal ID for the past 5 years. During this time we have enjoyed several small successes in the commercial interior design market……
I am now seeking to expand Reveal ID to a full time design practice over 2013….
I hope that in moving forward when opportunities arise you will keep Reveal ID in mind…..
I would be happy to discuss any opportunities, no project too big or small…”

•    The contacts who received the email included clients of the employer.
•    On 15 January 2013, the employer summarily dismissed the employee because of the email.
•    The employee then commenced an unfair dismissal claim in the Commission.

The employee’s application for unfair dismissal was based on the fact that the employer had in the past allowed him to undertake other jobs.  In addition, the employee argued that he had accepted he was not going to get an increase in salary so he had to seek additional work outside of hours and his intent was to refer any work to the employer that was too big for him to handle alone.

The Commissioner dismissed the claim and held that the employee was not unfairly dismissed.

The Commissioner’s reasons included:

“… by sending an email in those terms the applicant (employee) breached his fundamental employment obligations to his employer.  The email did not suggest that the applicant was seeking to perform small jobs outside his working hours.  It clearly stated that he wished to build a full-time operation and that his interest was not confined to small jobs that his employer would not take on…..He was soliciting work from current clients of his employer in clear breach of his obligation to put the interests of his employer before his own interests.

I do not accept the submission that the respondent had waived any right to object to the applicant soliciting private work given they had permitted him to do so during his employment.”

The Commissioner also said that the employer had lost confidence that the employee would promote the employer’s business as a result of the email and that gave the employer a valid reason to terminate the employment contract.  The termination was therefore not harsh, unjust or unreasonable.

In light of this decision it is important for both employees and employers to consider the possible ramifications of postings on social media and any effect the posting may have on the employment relationship.

If you have any questions in relation to this article or need advice or assistance on employment matters, please call Townsends Business & Corporate Lawyers on (02) 8296 6222.