2 recent cases of employees being fired over facebook and email ‘violations’ have won cases against their dismissal. What can you learn from their mistakes?
On the surface these cases were open and shut for the HR personnel involved – but a few quirks of technicality cost these businesses thousands in reparation. Lets see what went wrong:
1) The case of the dodgy facebook post
In the case of Somogyi vs LED Technologies we see an applicant challenging their dismissal which was stated as due to a facebook status update he made on his lunchbreak.
The post in question began : “I don’t have time for people’s arrogance. And your [sic] not always right! Your position is useless, you don’t do anything all day […]” the post then continued to make a crude sexually suggestive insinuation as to how the subject in question got their job. No need to repeat it here but I’m sure you get the gist.
In a seemingly reasonable response, his co-workers saw the post and notified the Managing Director, who immediately contacted the staff member in question and terminated his employment.
According to the MD, he
“did not provide Mr Somogyi with any real opportunity to provide an explanation for his behaviour … and he was not particularly interested in discussing the matter”
The MD simply felt the case for dismissal was immediately apparent.
Mr Somogyi argued the post was in relation to another matter involving his mother’s employment and that he was not allowed the opportunity to object to his termination or explain the circumstances.
The commissioner agreed.
Not only was Commissioner David Gregory critical of how the dismissal took place, he also implied the termination itself was invalid. While Mr Somogyi’s post was inflammatory and distasteful, it was created while on a break and was deemed as not connected to his employment with LED Technologies.
“I therefore determine that an amount of $6,238.00 should be awarded to Mr Somogyi, less taxation. This amount is to be paid within 30 days of this decision. An order to this effect is issued in conjunction with this decision.” – Commissioner David Gregory.
2) The case of the ‘funny’ emails
In the case of Bellenger vs Mid North Coast Local Health District, the applicant was found to have over 1200 emails of a pornographic, violent and generally inappropriate nature in her work inbox. These included nudity and other assorted pieces of content which were of an explicit nature. An audit had uncovered the emails in an inbox she had titled ‘funny emails’.
She was immediately fired.
Although it was noted that the employer
“had a valid reason to dismiss the applicant” according to Commisioner John Stanton, and that the “decision was sound and defensible”
It was not so clear cut.
It was noted she had not previously been warned for misconduct and that there were considerable mitigating circumstances, including her inability to readily find alternative employment and dire financial circumstances.
As compensation she was awarded 8 weeks pay.
Formal warning letters, comprehensive and detailed behaviour policy and bulletproof termination letters are your weapons here.
How AusDocs can help
AusDocs can help employers prevent scenarios like above by ensuring a company has the relevant policies and procedures that outline behaviours that are acceptable. They can also provide formal warning letters, termination letters etc. Also most of the docs are $44 in comparison to the $6K they were forced to award the employee.
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