The Fair Work Commission was recently called upon to look at the issue in two unfair dismissal claims, one lodged by a cleaner at an aged care facility who encouraged a resident to make a complaint to A Current Affair, and another from a senior manager at the RSPCA who leaked information to a union and a journalist.
In both cases, the commission rejected the claims, finding that the employees’ conduct warranted their dismissal.
Hedy Cray, partner at Clayton Utz, told HC that the firm was seeing an increasing number of cases where employers were concerned about the conduct of their employees.
“Perhaps this is technology, the internet and social media which just make it so easy to comment. Sometimes it’s confusion about an employee's right to ‘social justice’, or just because they want to damage or embarrass their employer.
“Whether it is an email which leaks documents, an anonymous blog, or an employee venting through social media, we are seeing a rise in the incidents of employees engaging with the media and making public statements which damage their employer,” said Cray.
An employer is entitled to expect good faith, trust and fidelity from an employee and that the employee will act in the employer's interests, she said.
“This means that it is not appropriate for an employee to engage in conduct which damages the reputation of an employer or which is intended to harm the employer. Employees should make complaints, but that they should do it through appropriate channels and not to merely embarrass or cause ridicule their employer.
“Using an internal grievance or disputes procedure or making a complaint to Fair Work Australia, is an appropriate means of addressing such a concern. Speaking to the media or encouraging public criticism of your employer is not.”
She said there was no "right to free speech" when it came to employees criticising their employer or their business.
“While there are protections for adverse action in the Fair Work Act, these will not condone or excuse an employee engaging in a deliberate campaign to damage an employer. The employee's intention when making the comments and whether they used established complaints procedures or right to actually make a complaint about the conduct, go a long way to establishing whether any commentary is fair and acceptable.”
Tips for employers to minimise, prevent and act on inappropriate comments made publicly by employees:
- Have clear employment contracts which protect confidential information and trigger termination on conduct which damages the employer's reputation
- Have a social media policy, which makes it clear that any action done on social media which identifies the employer, or causes the employer to be criticised may give rise to disciplinary action
- Have a media policy which prohibits employees from making public comments or leaking information to the media and establishes one limited channel for employer authorised public comment
- Have a complaints procedure, which makes it clear how an employer will respond to and deal with employee grievances and complaints
When an employee decides to take their complaints about their company public rather than reporting them through the proper channels, can they be justifiably dismissed?