The summary dismissal of an employee who had sharply criticised her employer and several identifiable colleagues in a closed staff group on Facebook was justified.

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An employee’s freedom to speak out as a private individual about their employer is limited by the employee’s duty of loyalty. This means, among other things, that the employee must not act in a way that damages or may potentially damage the employer. In this industrial arbitration case, the umpire had to decide whether an employee’s criticism of her employer and colleagues on Facebook could justify summary dismissal due to a breach of the duty of loyalty.

The case concerned an employee at a tobacco company where, over a period of about a year, several employees had experienced errors on their payslips regarding, among other things, days of holiday and allowances for shift work. The errors could be attributed to an external payroll office, and this had been communicated to the employee.

After discovering a new error on her payslip, the employee wrote a post out of frustration in a closed staff group on Facebook, of which around 84 of the company’s 100 local employees were members, where she sharply criticised the employer for not resolving the issues with the payslips. For example, the employee wrote that she could not stand “laziness, incompetence, freeloaders and thieves”, and that she had spotted at least three of these characteristics. She then noted that the payroll office, the day-to-day managers, a named manager and the factory manager all knew about the situation.

The company viewed the post as a material breach of the employee’s duty of loyalty due to the harsh and defamatory statements about other identifiable employees, and the employee was summarily dismissed. The employee and her trade union did not believe that the statements were sufficiently serious to justify dismissal with or without notice and brought an action against the company.

Summary dismissal was justified
The employee claimed, among other things, that the post did not constitute a breach of the duty of loyalty, as the company had not suffered damage or been at risk of suffering damage, because the criticism was directed at the external payroll office. Even if the criticism had been directed at the company, it was not – based on an overall assessment – proportionate to dismiss her with or without notice.

The employee emphasised that the criticism was a reasonable complaint about a problem that was already known, with the aim of bringing to the attention of other employees that there were still errors in the payroll process, and that the post had been made in a closed Facebook group to which only employees and a few managers at the company had access.

The umpire found that the summary dismissal was justified. Firstly, the umpire noted that although employers must tolerate some criticism in a situation where an employee is justifiably frustrated by, for example, payroll errors, not every form of criticism is justified. Secondly, the umpire noted that the post constituted unacceptably harsh and disrespectful criticism of identifiable employees at the company, who the employee even knew were not responsible for the errors, and that it was not obvious to read the post as criticism of the external payroll office.

Furthermore, the umpire established that a lengthy post on social media containing statements that are in breach of the duty of loyalty constitutes a more serious breach than an ill-considered outburst in a heated situation, especially if the post is not deleted quickly.

Overall, the umpire found that the post constituted a fundamental breach of trust, that it would undermine management if the employee remained at the workplace – even if it was only during the notice period – and that the summary dismissal was justified.

Norrbom Vinding notes

• that the award illustrates that an employee’s negative statements about their employer may constitute a breach of contract that can justify not only dismissal but also summary dismissal if the statements are of a sufficiently serious nature;
• that this also applies when negative statements are made on social media, even if they are made in closed groups; and
• that it may be an aggravating factor in the assessment of the seriousness of negative statements if the statements are directed at identifiable individuals.

The content of the above is not, and should not be a substitute for legal advice.