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GRC Professional : GRC Spring 2011
21 Fair work Australia comments on Facebook sacking In a test case, Fair Work Australia has reinforced an employer’s right to fire employees who use social networking sites such as Facebook to criticise the company and other employees. The national workplace relations tribunal said the case involving Damien O’Keefe and his former employer, Townsville-based electrical goods business The Good Guys, showed separation between home and work was now ‘ less pronounced’. Computer technician O’Keefe was fired from Williams Muir’s Pty Ltd, trading as Troy Williams The Good Guys, in 21 May, 2010, for “serious misconduct” . He was paid three weeks’ pay in lieu of notice. The court heard O’Keefe posted a message on his Facebook wall on 20 May, 2010, that read: “Damien O’Keefe wonders how the f*** work can be so f****** useless and mess up my pay again. C**ts are going down tomorrow.” His employer alleged O’Keefe’s comments were a threat to operations manager Kelly Taylor who was responsible for employee payments. O’Keefe, who represented himself, told the tribunal The Good Guys director Troy Williams said he “was taking the comments as his letter of resignation” . He said Williams told him to “ resign now or I will sue you” . O’Keefe applied to Fair Work Australia for an unfair dismissal remedy under the Fair Work Act 2009. Williams argued there was an intimate link between what O’Keefe published on his Facebook page and his work. He said the content “was about a co-worker and was published so some of his co-workers could see what he had written” . But O’Keefe said he was angry at not being paid commissions due to him and, after raising his concerns with his employer, thought the problem remained unresolved. Tribunal Deputy President Deidre Swan said it “would be difficult to accept [O’Keefe] was unaware of the consequences of his actions” . She said “common sense would dictate one could not write and therefore publish insulting and threatening comments about another employee” . “T he fact the comments were made on [O’Keefe’s] home computer, out of work hours, does not make any difference ... the separation between home and work is now less pronounced than it once used to be. ” DP Swan noted O’Keefe’s comment that his Facebook webpage was set to the maximum privacy setting and only his select group of friends (70 people) could see what he had written. He said The Good Guys was not mentioned on the webpage. But under cross-examination he said there were probably 11 co-workers among his 70 friends who would have seen the entry. ••• the fact the comments were made on [o’keefe’s] home computer, out of work hours, does not make any difference . .. the separation between home and work is now less pronounced than it once used to be. PROTEGENT SunGard Protegent can help protect your firm from regulatory and reputational risk. Oversee your staff’s business related social networking activities Prepare for the upcoming changes related to the Future of Financial Advice Manage potential conflicts of interest such as staff dealing and black book Mitigate issues related to illegal insider trading and market manipulation Streamline account opening by providing an intelligent front end for disparate systems Meet our specialists at booth #10 at the 15th Annual ACI conference on 20-21 October. For more information, contact us at firstname.lastname@example.org or (02) 8224 0000. www.sungard.com/protegent ©2011 SunGard. Trademark Information: SunGard, the SunGard logo and Protegent are trademarks or registered trademarks of SunGard Data Systems Inc. or its subsidiaries in the U.S . and other countries. All other trade names are trademarks or registered trademarks of their respective holders.
GRC Summer 2012