That ranting post could cost you your job

The law around commenting on employers and workplaces via social media is evolving but it’s a safe bet it will always be a bad idea. 

In the last column, we explored some real life examples of nurses/midwives misusing social media in relation to patients. In this edition, we will examine the misuse of social media in relation to an employer, some judicial responses and when it may result in termination of employment.

There exist few reported cases in this area of the law. This may be explained by the misuse of social media being dealt with as an internal disciplinary matter in breaching the employers’ own policies. The question of what postings would justify dismissal from one’s employment can be gleaned from some overseas examples:

• An  ED nurse posted information about a sexual assault victim. Although the victim’s name was not disclosed, the nurse provided enough information in the post that the media was able to discover the identity of the victim and her residence.
• Two nurses took pictures on their mobile phones of a patient’s x-rays showing a sex device lodged in his lower body and then one of the nurses posted the pictures on social media.
• Nurses that work together in a hospital ED were fired for discussing patients on a social media site, even though they did not post any identifying information.
• A nursing home employee took a photo of a resident’s genitals with a mobile phone and then sent the photo to a friend who posted it on social media.
• A nurse posted information on her social media page about an alleged cop-killer she treated even though she did not discuss the details of his condition, his name or any other identifying information.

In the above examples, the behaviour and actions of the nurses were egregious and flagrant breaches of confidentiality, professionalism and hospital policies. Some attempts were made to maintain anonymity of clients but again this demonstrates a misunderstanding by nurses concerning this area of communication and media.

What then is the position when the posting is less flagrant refers less to clients but contains negative comments or criticisms about the employer and/or more senior staff? What is the position when a nurse/midwife wishes to share opinions concerning work with ‘friends’ using social media? What level or degree of disparagement or what manner of language would justify termination of a nurse or midwife’s employment? Two recent cases are illustrative, even though not related to nurses or midwives; the judgements are enlightening.

The first case is recent and also a full-bench decision of Fair Work Australia, hence it has importance and currency concerning the present state of the law. The employee was a long-serving worker of 22 years. His employment was terminated for serious misconduct following the posting of comments about two of his managers on his Facebook page.

The posted comments were offensive, derogatory and discriminatory. They included suggestions of dishonesty and underhanded conduct, and comments about sexual misconduct. The commissioner hearing the matter at first instance found the comments to be akin to ‘a group of friends letting off steam and trying to outdo one another in being outrageous’, and whilst in poor taste did not amount to serious misconduct.

The employer appealed and the full bench outlined a number of key principles to be applied in assessing the validity (or fairness) of a dismissal for misconduct based on the misuse of social media. In dismissing the appeal, the tribunal stated that the posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment. Further, that comments made directly to managers and other employees and given wide circulation in the workplace and elsewhere, would be treated more seriously than if such comments were shared privately by a few workmates in a social setting. The tribunal did not agree with characterising the comments as having the flavour of gossip in a pub, however, noting that “even if the comments were only accessible by the 170 Facebook ‘friends’ of the [employee], this was a wide audience and one which included employees of the company”. The tribunal warned that the ease with which people could forward the posts, and their “permanent written record”, meant employees “should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees”.

The tribunal, in this instance, took these matters into consideration in finding that the employer was not justified in dismissing the employee:

• The long, unblemished employment record, his age and limited employment prospects
• The employees belief that his Facebook page was on maximum privacy settings, that the comments posted on his page could be viewed by only himself and his Facebook friends, and that the comments were never intended to be communicated to the managers
• The conduct occurred outside of the workplace and working hours
• Some statements were posted by others and the employee did not know that he could delete them once posted.

Nurses and midwives need to understand that this is an evolving area of the law where more recent decisions have shown a gradual retreat from placing weight upon evidence of an employee’s lack of awareness of social media. Contrast the above case with one from 2013 where an employee’s use of his Facebook account to criticise a third-party organisation with which his employer had professional dealings – and to make sexually suggestive comments about a new employee – constituted valid reasons for termination of his employment.

The employer had implemented a code of conduct, which addressed appropriate use of social media. The employee was aware of, and was trained in, the code. However, the tribunal found that the termination of the employee would have been fair even absent of the code. In this regard, the tribunal observed that the employee “hardly needs written policies or codes of conduct to understand and appreciate that, firstly, the kind of sexual comments made … were grossly offensive and disgusting and were more than likely to cause hurt and humiliation”.

The tribunal also found that the employee’s comments about the third-party organisation were likely to have an adverse impact on the employer’s relationship with that group and damage the employer’s wider reputation. This further justified the dismissal.

Any nurses or midwives who use social media to criticise or slander their employer or their workplace – even in the belief it’s just between friends – are flirting with the peril of having their employment terminated. Just don’t do it!

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University, Queensland.

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