Two recent unfair dismissal cases highlight the dangers of posting on social media, even when posts are made using private accounts. Both cases concerned Facebook posts, however, one dismissal was held to be unfair while the other was valid. In this article, we examine the key differences between these cases.
Swimming instructor recommends one employer and not the other
In Besanko v R. B. Aquatics Pty Ltd t/a Swimmers  FWC 1952, Ms Besanko was a 19-year-old student who worked as a casual swim instructor for Swimmers and for Melton Swim School . On a private community Facebook page, Ms Besanko responded to a post asking for a swim school recommendation with the words ‘Melton swim school!’.
The manager and owner of Swimmers saw the post and believed Ms Besanko’s conduct was disloyal, especially because she had received JobKeeper payments from Swimmers during the COVID-19 pandemic. They believed it was wrong for Ms Besanko to recommend one swim school when she worked for two. Ms Besanko’s employment was terminated on the basis that her conduct was unsatisfactory, disloyal, and unfairly discriminated against Swimmers.
Even though the owner of Swimmers had a genuine belief that the conduct was sufficiently serious to justify summary dismissal, this belief needed to be objectively based on reasonable grounds. The Commission considered that Ms Besanko did not mention or criticise Swimmers, and people reading the post would not have known that Ms Besanko worked for Swimmers, since her Facebook settings were private.
The Commission found that Ms Besanko’s behaviour was ‘foolish, naive and ill-judged’ and a ‘regrettable example of an employee using social media without carefully considering the potential consequences for herself or her employer’. Ms Besanko should not have recommended one employer over the other, and she naively and wrongly believed that recommending one employer was not inconsistent with her obligations to both.
However, while Ms Besanko’s conduct justified disciplinary action, it was not wilful, deliberate, or done with the intent or knowledge that it might cause harm to Swimmers. Her conduct was not serious enough to establish a valid reason for dismissal. Despite this, Ms Besanko was not awarded any compensation since she later obtained other employment and consequently did not suffer a loss of earnings.
Finance broker claims inappropriate post was condoned by workplace culture
In Thompson v 360 Finance Pty Ltd  FWC 2570, Mr Thompson, a finance broker at 360 Finance, posted a meme on his personal Facebook page with an image of him, a female colleague, a washing machine leaking suds onto the floor, and the words ‘You pulled out right?’ ‘Yeah, of course’. The colleague initially consented to the post but later asked Mr Thompson to delete it, which he eventually did. Mr Thompson posted a second meme 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’s employment was terminated for misusing social media and company property, sexual harassment, and failing to adhere to 360 Finance’s policies or act in its best interests. Relevantly, he had also previously received three ‘final’ warnings for misconduct, including failing to comply with the company’s policies.
A key issue in considering the matter was whether the workplace culture condoned Mr Thompson’s behaviour. The Commission found that the workplace tolerated ‘all sorts of conduct’, including racially provocative and sexist conduct, regular sexual harassment, frequent dissemination of rumours and gossip, and swearing in front of colleagues and clients.
However, even though the culture fell considerably short of the standards expected of a workplace, Mr Thompson’s conduct was plainly inappropriate and sufficiently serious to establish a valid reason for dismissal. The Commission held that
Mr Thompson’s dismissal was not harsh or unjust.
Comparison of the cases
Both employees did not list their employer on their Facebook accounts and argued that they did not intend to cause harm or damage.
However, while Ms Besanko’s ‘foolish and naive’ Facebook post was not made with the knowledge that it might cause harm to Swimmers, Mr Thompson had previously been given warnings for misconduct. Ms Besanko’s post was not serious enough to establish a valid reason for dismissal, however, Mr Thompson’s post was inappropriate, unlawful, and serious enough to warrant dismissal.
Employers need to be careful when deciding whether to dismiss an employee for their posts on social media. Negative posts that relate to an employee’s employment will not automatically mean that an employer has a valid reason for dismissal. While disloyalty in recommending one employer over another may not establish a valid reason for dismissal, it could still justify disciplinary action.
Where conduct is plainly inappropriate, an employer may have grounds to dismiss an employee even in circumstances where the workplace has previously informally condoned unacceptable behaviour. Ultimately, any decision to discipline an employee for their social media posts needs to be proportionate, taking into account all circumstances, including the health and safety of other employees.