In Burd v Moran Management [2016] FWC 488, the Fair Work Commission (“FWC”) recently upheld an employer’s decision to summarily dismiss an employee for serious misconduct (i.e. termination without notice) after he sent an email to an industry competitor which contained damaging information about its business.

The employee sent the email from his work email address and in the course of seeking alternative employment from an industry competitor.

The email contained both personal derogatory remarks about his manager and damaging (and inaccurate) remarks about the company. In the employee’s defence, he argued that the negative comments made about his manager’s personal life were common knowledge within the workplace but the FWC failed to accept this as a defence to his actions.

The FWC determined that the employer had reasonable grounds for concluding that the behaviour of the employee amounted to serious misconduct, thereby justifying immediate dismissal, given the personal and slanderous nature of the comments made about his manager and the company, as it had potential to cause damage to the reputation of the business.

The FWC accepted the evidence of the employer as it was satisfied that the employer had adequately informed itself of the following relevant information before making the decision to summarily dismiss the employee. In particular, it had:

• Taken steps to verify the authenticity of the email;
• Objectively assessed the content of the email and determined that it was destructive enough to damage the employment relationship; and
• Identified a serious risk to the company’s reputational damage if it continued with the employment relationship.

Message for Employers

Despite this recent decision of the FWC, employers should continue to exercise extreme caution when determining whether to summarily dismiss an employee and should seek legal advice prior to making any such decision.

With the increase in the use of social media in the workplace, employers are commonly faced with the challenge of disciplining their employees for the use of inappropriate comments made about the employer, its employees and the company.

Whilst this decision is encouraging for employers, we note that each matter will turn on its own facts. Therefore, it is useful to note that in this case, the FWC gave consideration to the following factors:

• The employee had been well informed as to the company’s email and internet policy on numerous occasions;
• The parties had earlier agreed that the employment would end in a few months as the employee had received three prior warnings relating to the company’s email and internet policy prior to being summarily dismissed;
• The employer afforded the employee procedural fairness by providing him with an opportunity to explain why he sent the email;
• The employee failed to provide a reasonable explanation for sending the email; and
• The nature of the comments made by the employee were sufficiently serious to cause significant damage to the reputation of the employer.