‘Back to the dole queue for you’: Employee unfair dismissal bid thrown out despite divisive Facebook comments

SmartCompany, December 4, 2018

Under the Fair Work Act 2009, an employee is only protected from unfair dismissal if the employee is actually dismissed. Section 386 of the FW Act sets out the meaning of “dismissed” for this purpose and states that a person has been dismissed if their employment has been terminated on the employer’s initiative or if the person was forced to resign because of the conduct of the employer.

In most cases, it is clear when an employee is dismissed or has resigned. There is usually some formal discussion or at the very least, a termination or resignation letter. However, things can become complicated when employees and employers introduce informal means of communication into their serious employment discussions, such as text messaging or messaging over social media.

There have been a number of cases in 2018 that have involved misunderstandings as the result of messaging over social media or text. In one of the most recent, an employee claimed that she was dismissed by her employer through a combination of texts and a phone call but her employer maintained that he did not dismiss her, instead, she resigned. READ MORE: https://www.smartcompany.com.au/business-advice/legal/employee-unfair-dismissal-facebook-comments/