Employers warned about social media communication with employees

AMJK Pty Ltd t/a Bloom Bar & Lounge (Employer) dismissed an employee for what they determined to be “unreliability and lack of cooperation” conduct. The employer described the employee as “difficult and demanding” with a “tendency not to turn up for shifts or leave early.”

The employee worked an average of six hours per week to fit around her university timetable. While her hours of work varied, her engagement was accepted as regular and systematic and she had a reasonable expectation of continuing employment on a regular and systematic basis.

Following eligibility for JobKeeper, there was an agreement that the employee would increase her hours to 15 per week and take on alternative duties.

After three months the employee, using Facebook Messenger raised concerns that she did not believe there had been adequate training to perform the additional duties along with issues regarding PPE.  Following this the employer and employee came to an agreement that the employee would complete all allocated duties.

During the two weeks it took to reach agreement the employee did not work, however was paid JobKeeper. 

A month later the employer met with the employee and issued a warning letter in an effort to get the employee to change her conduct, including her attendance in what the Commissioner described as a “poorly drafted and confusing” letter.

Shortly after this the employee was dismissed.

In the decision Commissioner Leyla Yilmaz found that although the employer had a valid reason to dismiss the employee she ruled that it was unfair because of the lack of procedural fairness.

The warning letter’s objective of forcing change in her conduct failed.

The employer immediately terminated her employment based on an assessment of her response to the letter instead of giving her an opportunity to address her conduct after initiating a disciplinary procedure.

The Commissioner found that while both the employer and the employee used a mixture of emails, text messages and Facebook Messenger this fell short of face-to-face meetings.

Haley Howard-Colla v AMJK Pty Ltd T/A Bloom Bar & Lounge [2020] FWC 60840(12 November 2020)

This case highlights that although there may be a valid reason for terminating an employee it is critical that procedural fairness is followed to ensure that the employee has been giving a full and fair process in line with the provisions of the Fair Work Act 2009.

This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email at admin@wrlaw.com.au

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