Amanda Lathia discusses firing employees over social media posts in HR Grapevine

  • November 27, 2019
  • By Amanda Lathia, Associate

Employees may be laid off for a number of reasons; they may be underperforming and missing deadlines on a regular basis or disrupting teams and workplace culture with a toxic attitude.

Whatever the case may be, stated that employers must have a valid and justifiable reason for the dismissal of an employee and show that they have acted reasonably in the circumstances.

Recently, however, a spate of social media related employee incidents have hit headlines, with many resulting in an individual being fired from their job.

With these three cases all resulting in an employee being sacked due to their social media posts, is it fair for an employer to actually fire someone for something that was supposed to be tongue-in-cheek? According to Amanda Lathia, Solicitor in the Business Services Department at Hunters, there are in fact no standard guidelines for employers when it comes to cases like this.

“Despite the high-profile cases that have arisen in the recent past, there are no standard guidelines for employers when dealing with an employee’s conduct on social media,” Lathia told HR Grapevine. “In fact, courts have been reluctant to provide guidelines believing that they could lead to a tick-box approach which would be inappropriate for unfair dismissal complaints.”

When it comes to the employee who posted a meme on a Sunday – not during work hours – Lathia mentioned that employers will have a fair case for dismissal if the post is derogatory towards to the business, which in this case, the gross humour could be considered as such.

She continued: “Where an employee has a non-work related private profile and posts derogatory comments about his/her employer, this can give rise to the employer having a fair reason for dismissal because the post, even if only seen by his/her friends, can be shared numerous times and potentially cause reputational damage to the employer, effectively creating a ‘connection to work’.”

However, ultimately the onus falls on the employer as to whether an employee should be removed due to their conduct on social media platforms, as Lathia concluded: “Yes, employers can fire an employee based on a social media post but such an outcome is highly fact-dependent.”

Read the full article in HR Grapevine here

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