Nurse faces dismissal for comments
Dismissal for making public comments – whether to the media or on social media – is an issue that the Fair Work Commission has ruled upon regularly. There are a number of legal trip wires that employees often step on when making public comments. It could be that their comments violate the policies or values of their employer. Or that they place their employer’s reputation at risk. Even public comments made outside of work hours can see an employee fairly dismissed.
It is therefore wise to always be careful of what you say on social media or to the media. Because there is always the risk that your comments could result in disciplinary action or dismissal. This is what happened to a nurse in the recent general protections case Gilbert v Metro North Health and Hospital Service and Ors (No. 2) [2023].
Nurse facing dismissal due to media comments has general protections claim rejected
Margaret Gilbert was employed by The Prince Charles Hospital in Brisbane as a Duty Nurse Manager. In October 18, she was appointed the Branch Secretary of the Nurses’ Professional Association of Queensland (NPAQ). To understand the ruling made in this general protections case, it is important to outline that the association is an incorporated organisation.
On 24 November 2019, Ms Gilbert was quoted in an article published by the Sunday Mail. The article was titled “Nurse decline is off the charts” and identified Ms Gilbert as “the duty nurse manager at Prince Charles Hospital.” It featured several comments from Ms Gilbert criticising nursing graduates and the nursing profession. She had not attained authority or permission to contribute quotes to the article.
Ms Gilbert is sent show cause notice, makes general protections claim
After reading her comments in the article, the executive director of The Prince Charles Hospital sent Ms Gilbert a notice of show cause. She was asked to show cause why her employer should not discipline her for contributing quotes to the article without seeking permission.
In response, Ms Gilbert asked for more time to provide her show cause statement. But instead of providing a statement, she instead filed a general protections claim with the Queensland Industrial Relations Commission. In her general protections claim, Ms Gilbert alleged that her employer violated the general protections provisions contained in the Queensland Industrial Relations Act 2016. She also made ancillary claims under the Anti-Discrimination Act 1991 and the Human Rights Act 2019.
General protections claim alleges adverse action for taking part in industrial activity
In her general protections claim, Ms Gilbert alleged she experienced adverse action from her employer because of her involvement with the NPAQ. She alleged that her employer had taken two adverse actions because she had engaged in a workplace right.The first allegation was that her employer had issued a memorandum against Ms Gilbert for being a member of the NPAQ. The second allegation was that her employer delivered a show cause notice to her because she had engaged in industrial activity on behalf of the NPAQ.
Ms Gilbert’s employer argued that she was not in fact entitled to the rights that she claimed were violated. It sought for the general protections claim to be dismissed and for Ms Gilbert to pay its legal costs.
The key question the Queensland Industrial Relations Commission had to answer is whether the NPAQ is in fact an industrial association. In her general protections claim, Ms Gilbert argued that it is an industrial association. She specifically pointed to the definition of an industrial association outlined schedule 5, section 279 of the Industrial Relations Act.
Ms Gilbert claimed that NPAQ met this definition. The definition is “an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment.” However, Ms Gilbert’s employer argued that it is not an industrial association. Particularly because it is an incorporated association that is not registered under the Industrial Relations Act as an “association of employees.”
Queensland Industrial Court rules on general protections case
In September 2023, the Queensland Industrial Court found that the Nurses’ Professional Association of Queensland is not an industrial association. The court upheld the Queensland Industrial Relations Commission’s 2021 finding of the same. The Commission had observed that it would be an “absurd outcome” that the organisation would “benefit of certain protections afforded under [Queensland’s] IR Act but not be burdened with any of the responsibilities of a registered organisation.”
The court found that the NPAQ did not meet the definition of industrial association outlined in the IR Act. It stated that that definition “does not include an incorporated body or entity.”
General protections claim ruled invalid
Due to the court ruling that NPAQ is not an industrial association, it found that Ms Gilbert “cannot be said to have engaged in industrial activity.” The court also quashed her argument that NPAQ is a trade union. This annulled Ms Gilbert’s claims that her employer violated her human rights to freedom of expression and association. This was because the alleged rights violations all related to her engagement in trade union activity.
Given these findings, the court therefore dismissed Ms Gilbert’s general protections case. She now faces a possible dismissal due to the comments she made to the media.
Dismissed for public comments: What the law says
In Australia, the Fair Work Commission plays a pivotal role in assessing whether an employee’s dismissal based on comments made on social media or to the media is valid. When evaluating such cases, it considers several key factors:
1. Intention and breach of contractual duties: Was the employee’s action intentional. And did it breach their contractual duties to the employer?
2. Harm to reputation, finances or well-being: Did the employee’s comments have the potential to harm the employer’s reputation, financial stability or the well-being of others?
3. Compliance with company policies: Did the comments violate the employer’s social media or company policy?
4. Nature of the comments: What was the tone and context of the comments? The emphasis is on the overall impression it creates, rather than the specific wording.
5. Connection to the employer: Is there a sufficient connection between the comments and the employer?
6. Values alignment: Did the comments support views contrary to the values of the employer?
7. Procedural fairness: Was the employee provided with procedural fairness before being dismissed?
Types of comments leading to dismissal
The range of comments that can result in lawful dismissal is broad. But certain types of comments are more likely to lead to dismissal. This includes:
1. Racist, sexist or inciteful comments: Comments that offend, insult or incite violence or fear based on race or ethnicity can be considered unlawful. They may violate the Racial Discrimination Act 1975 and therefore could lead to dismissal.
2. Criticism of company policies: Mocking or criticising company policies, especially when done publicly, can be grounds for dismissal. This can be the case if the comments damage the employer’s interests or reputation.
3. Failure to remove offensive content: Even the failure to remove offensive content at the employer’s request may be sufficient for dismissal.
4. Privacy considerations: Posting on private pages or using stringent privacy settings does not guarantee protection from dismissal. This is especially the case if work mates or others who know the workplace are part of the audience.
Dismissed for media comments: Connection to workplace
The line between work and personal life has blurred in the digital age, making it possible to be dismissed for comments made outside of work hours. Social media clauses or guidelines in employment contracts or codes of conduct often set the expectations for employees’ online behaviour. The key consideration is whether the conduct, regardless of the timing or medium, affects the employment relationship or the employer’s legitimate interests.
Employers have a legitimate interest in maintaining their reputation and employee productivity. Excessive social media use during work hours can be grounds for disciplinary action. Reputational damage caused by offensive or derogatory comments can lead to dismissal.
Can you be dismissed for expressing your political opinion?
While employees have the right to hold political opinions, employers can impose reasonable restrictions on social media use to protect their reputation. The Fair Work Act 2009 protects employees’ political opinions but allows employers to define acceptable boundaries. The general protections provisions mandate that it is unlawful for an employer to take harmful action against an employee for expressing a political opinion. However, an employee can be fairly disciplined or dismissed if their political opinion flies against their employer’s values or policies.
An unfair dismissal case that involved an employee making inappropriate comments on social media is Marc Waters v Mt Arthur Coal Pty Limited [2018]. The case involved coal miner Marc Waters who worked at Mt Arthur Coal Pty Limited’s open-cut mine in the Hunter Valley, New South Wales. He also held the role of a Health and Safety Representative (HSR) at the mine. The case revolved around the company’s decision to continue mining operations on Christmas Day and Boxing Day, which raised safety concerns.
A Direction to suspend mining operations was issued by an Industrial Safety and Health Representative due. This was for safety reasons due to the reduced emergency evacuation capacity during that period. Mt Arthur Coal received the direction but chose not to comply with it.
Mr Waters’ simple mistake gets him dismissed
The key event in this unfair dismissal case took place on Christmas eve. That was when Mr Waters made a Facebook post that stated, “Xmas & Boxing days shifts are off for good.” The problem was that the Facebook post was incorrect, as Mt Arthur Coal had decided to continue operations despite the Direction. Mr Waters did not know that the information he provided in the post was incorrect. But he soon found out and attempted to rectify the situation. He contacted his colleagues and representatives to confirm the company’s decision and eventually deleted the post.
For this incorrect Facebook post, Mt Arthur Coal dismissed Mr Waters. The company stated that he had violated their workplace policies. In these policies, there were rules against distributing material likely to cause annoyance or anxiety to colleagues. And also rules about sharing information with the public without specific authorisation.
Feeling that his dismissal was unjust, Mr Waters lodged an unfair dismissal claim with the Fair Work Commission. In his claim he argued that his dismissal was unfair because the reason for his dismissal related to conduct outside of work. Mr Waters also contended that he was protected from dismissal as an HSR under the Work Health and Safety Act 2011 (NSW).
Fair Work Commission rejects unfair dismissal claim
The Fair Work Commission ultimately rejected Mr Waters’ arguments and upheld his dismissal. Several key factors influenced this decision. It was found that the Facebook post had a relevant connection to Mr Waters’ employment. This was because he intended to communicate the post with his workgroup. And also that the post referred to work shifts at the mine and related to operational matters. The inaccurate post had the potential to cause significant confusion and damage Mt. Arthur’s interests in operating the mine.
The Fair Work Commission also found that Mt. Arthur Coal had clearly defined workplace policies. This included those related to integrity, respect and accountability, prohibiting actions like Mr Waters’ Facebook post. It was noted that failing to comply with lawful and reasonable policies could constitute a valid reason for dismissal.
Mr Waters’ argument that he was protected from dismissal due to his role as a Health & Safety Representative did not succeed either. The Fair Work Commission ruled that his Facebook post did not constitute an exercise of his HSR functions. It was found that the Work Health and Safety Act did not grant the power to communicate about health and safety matters through social media. Given these findings, the Fair Work Commission rejected Mr Waters’ unfair dismissal claim.
We can help you make an unfair dismissal or general protections claim
Our team at A Whole New Approach are highly experienced workplace representatives that can help you take action through the Fair Work Commission. If you have been unfairly dismissed, discriminated against or experienced adverse action, call us today. Timing is critical in such cases. You only have 21 days from the date of your dismissal to file a claim with the Fair Work Commission.
We have over three decades of experience helping over 16,000 Australian workers make unfair dismissal and general protections claims. AWNA possess an in-depth understanding of the Fair Work Commission and our reputation is feared by employers nationwide. AWNa are not lawyers, nor are we a law firm. We are considered the nations leading workplace advisors and commentators. We work on a national basis, including, Victoria, NSW, QLD and SA
Contact A Whole New Approach today at 1800 333 666 for a free and private discussion about your situation.
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