Employers can fire employees for comments made on Facebook, law expert claims

A group of prison officers in New South Wales have won a case against the NSW Corrective Services Department after it tried to fire them over comments made on social network Facebook. But a law expert has warned employers still have the right to take action against employees who make comments on social networks about a company or its operators.

In a fan group called “Suggestions to help Big RON save a few clams”, the group of officers criticised plans to privatise prisons and said there could be other ways for the corrective services commissioner, Ron Woodham, to save money.

But NSW Industrial Relations Commission Justice Frank Marks has found that a subsequent investigation conducted by former police commissioner Ken Moroney to determine if misconduct had occurred was invalid. It was found Moroney was not acting as an official state employee, and therefore the investigation’s findings could not be used against the officers.

It was found that a letter was sent to the officers, saying the department was considering letting them go for alleged misconduct. It was said this was described as “bullying” and “harassment”.

“In these circumstances it would be both unjust and inappropriate for Corrections New South Wales to proceed to take any disciplinary actions against any of the officers concerned based on anything done by Moroney pursuant to the invalid delegation,” the judgement read.

However, Marks’ judgment did not address the comments made on the site specifically, whether a new investigation might be successful in bringing legal action against the officers.

But Steven Penning, a partner with Turner Freeman, says the case serves as a lesson that employers most certainly have the right to take action against employees who make comments on Facebook.

“The reality is that employees can be terminated for any number of reasons, but they can be terminated for comments made on Facebook relating to any part of their employment, or other employees, and those comments are in some way damaging.”

While Penning acknowledges the complexities of comments on Facebook, as it allows certain comments to be made in private and others made public, he says the case before the commission involved a public group where all people could view comments.

“This would be different than just friends talking about other friends. But there are clear examples of employees posting things on Facebook that are either damaging to employees or the company itself.”

He cites two examples from the United States, one where a Domino’s Pizza employee was filmed putting cheese up his nostril and then on a customer’s pizza, and another where KFC employees were caught swimming in large dish-washing sinks. These incidents were posted on Facebook.

“These incidents can be used as evidences and a base for reprimand. Also, if an employee was given confidential information and it was posted on Facebook, then the employer would have grounds against that employee.”

But Penning says the more pressing issue is that businesses do not have any social media policies in place for handling cases such as these, and says employers are extremely inadequate when it comes to telling staff what they can or cannot do on social media.

“Businesses have rules for a social gathering – don’t hit on a colleague’s wife, don’t become drunk and unruly, etc. And yet they do not have the same policies for social networking.”

“It’s fairly clear that for this judgement, it would have been a hell of a lot better for the employer if they had a clear policy on what could or could not be said on social media. If employees knew what the rules were and what level of responsibility was expected, it would have turned out better. Employers must actively promote social media rules and cannot pretend it doesn’t exist.”

Peter Vitale from CCI Lawyers says employers most certainly have the right to fire employees for comments made on social networks.

“An employer could reasonably argue an employee is no longer capable of performing his employment agreement. It’s all a matter of degree when it comes to Facebook… but the fact that it is published and accessible is enough for a case.”