Dismissal from employment due to social media post

Case: Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring (U2019/2978)

Area of Law: Employment – Unfair dismissal

Act: Fair Work Act 2009 – s 394. Application for unfair dismissal remedy

Background of employment

Ms Murkitt was employed on a full-time basis by a predecessor of Alarmnet beginning in February 2005. Her most recent contract of employment was dated 23 December 2010 and contained a provision that Ms Murkittt “cannot intentionally do anything that is or maybe harmful to the Company”.

On 6 June 2017, Alarmnet was purchased by Staysafe Pty Ltd and Ms Murkitt’s employment continued. The company’s social media policy was emailed to Ms Murkitt on 8 November 2017 and a copy placed on her desk.

On Friday 30 November 2018, a close work mate of Ms Murkitt was killed on his way home from work. Ms Murkitt was of the view that Alarmnet did not sufficiently support its employees after this incident and was significantly impacted by this event. From about 5 December 2018, Ms Murkitt was absent from work for a psychological injury covered by workers compensation.

Social media post and dismissal

On 26 February 2019, Ms Murkitt was advised by an independent psychiatrist that she would not be able to return to the workplace as it would be too toxic an environment. Ms Murkitt was angry that she would not be going back to her place of employment and on that same day she made a Facebook post regarding Alarmnet. On 27 February 2019, Alarmnet corresponded with Ms Murkitt about the Facebook post and organised a disciplinary meeting which was conducted on 5 March 2019. Ms Murkitt attended this meeting accompanied by a support person.

Ms Murkitt confirmed she made the post and that she was angry at the time. Alarmnet advised Ms Murkitt that they believed that the comments made in the post constituted a breach of the social media policy and gross misconduct. On 5 March 2019, Ms Murkitt’s employment was summarily dismissed (with effect from 6 March 2019).

On 18 March 2019 Ms Murkitt lodged an unfair dismissal claim. Ms Murkitt contends that she was dismissed because of the WorkCover claims, given the proximity of the decision to the receipt of the return to work reports on 16 February 2019.

What were the legal issues?

  1. Did Ms Murkitt’s conduct constitute a valid reason for her dismissal?
  2. Was the dismissal harsh, unjust or unreasonable in the circumstance?

Decision of the Fair Work Commission

Had the applicant been dismissed?

Ms Murkitt had been dismissed within the meaning of s 385 of the Fair Work Act 2009 (‘the Act’).

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the Act lists the factors the Commission is required to take into account when determining whether the dismissal of Ms Murkitt was harsh, unjust or unreasonable. The Commission found that there was a valid reason for the dismissal related to Ms Murkitt’s conduct surrounding the Facebook post. In addition, Ms Murkitt was notified of the reasons for her dismissal prior to the decision to dismiss being made, she was given an opportunity to respond to the valid reason at the disciplinary meeting on the 5 March 2019,  Ms Murkitt was accompanied by a support person at the disciplinary interview and the size of the Alarmnet’s enterprise was not likely to impact on the procedures followed in effecting the dismissal. The factors regarding unsatisfactory performance were not relevant to Ms Murkitt circumstances.

However, other relevant matters were also considered by the Commissioner, including:

  • Ms Murkitt was employed for 15 years with no previous formal disciplinary action
  • Ms Murkitt was upset at the way Alarmnet handled the death of her co-worker and of the way in which it was managing employees
  • Ms Murkitt was suffering from a psychological condition at the time the conduct occurred and at the time of the disciplinary meeting
  • Mr Darlington advised that he took into account Ms Murkitt condition but because she showed no remorse or responsibility they deemed dismissal as the appropriate outcome
  • Alarmnet did not sufficiently take into account the impact of Ms Murkitt’s medical condition at the time they determined to dismiss her
  • The Facebook post was a single event, and did not result in any financial harm to Alarmnet
  • The sanction of dismissal in the light of Ms Murkitt’s medical condition, length of service, the lack of any previous performance issues, was a disproportionate outcome.

Conclusion

On 16 August 2019, the Commissioner found that Ms Murkitt was unfairly dismissed within the meaning of section 385 of the Act. Under section 387 of the Act, the sanction of dismissal of Ms Murkitt was harsh under the circumstance.

Remedy

Re-instatement was not requested by Ms Murkitt and was thus not an appropriate remedy. In addition, the Commissioner found that payment of compensation was not appropriate because Ms Murkitt would not have continued to work for Alarmnet if she had not been dismissed. The Commissioner declined to order any remedy and under section 392(4) of the Act, the Commissioner did not allow for any shock, distress or humiliation that may have been caused by the dismissal.

Lesson

This case serves as an important reminder about the importance of employers providing adequate support to employees during times of psychological distress within the workplace. In addition it is important for employees to be careful of what they post online about their workplace and the impact this could have on employment including breach of a social media policy and possibly dismissal.

Written By Fran Keyes and Elyse Staunton 

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