Review the Small Business Fair Dismissal Code 3 min read
The Fair Work Commission (FWC) has decided the summary dismissal of an employee due to a social media post she made on Facebook regarding a competitor of her employer was unfair.1
- Small business employers need to ensure that any decision to dismiss an employee is consistent with the requirements of the Small Business Fair Dismissal Code.
- An employer's genuine belief that a dismissal was justified is not enough – that belief must also be based on reasonable grounds.
Ms Besanko was employed as a casual swimming instructor by a local swim school called Swimmers in the suburb of Melton. She also worked on a casual basis occasionally for another swim school in the local area.
A parent in the local area had posted on a private Facebook community page requesting recommendations for local swim schools. Ms Besanko responded to this post by recommending the other swim school that she had occasionally worked for instead of Swimmers. After discovering the comments thread on Facebook, Swimmers made the decision to summarily dismiss Ms Besanko effective immediately on the basis that her conduct in making the post was unsatisfactory and disloyal to her employer.
At the time of Ms Besanko's dismissal, Swimmers had fewer than 15 employees within its workforce and was therefore considered a small business employer. This meant Swimmers needed to comply with the Small Business Fair Dismissal Code, which requires that an employer believe on reasonable grounds that an employee's conduct is sufficiently serious to justify summary dismissal in order for the dismissal to be fair.
The FWC concluded that Swimmers had indeed formed a genuine belief that Ms Besanko's employment was no longer tenable given that her recommendation of a competitor had the potential to damage Swimmers' business, however it did not conclude that this belief was objectively based on reasonable grounds.
Given that it was not in Ms Besanko's wilful and deliberate intention to harm Swimmers' business, that the post did not directly denigrate Swimmers and there was no evidence of any harm to its business, the Facebook post warranted alternate disciplinary action that was of a lesser severity than summary termination.
Jasmine Besanko v R.B. Aquatics Pty Ltd T/A Swimmers  FWC 1952