Casual employee fails in unsuccessful unfair application

A casual hospitality worker has failed to convince the Fair Work Commission that the termination of her employment was unlawful, largely due to posts she made on social media regarding work being regarded as unacceptable.

The female employee ‘BR’ commenced employment as a casual with the Trustee for the Dolphin Hotel Unit Trust (the employer) as a Sales Representative on 24 April 2021 and was terminated on 10 November 2023.

Before assessing the merits of the case, Deputy President Bryce Cross considered a jurisdictional objection from the employer that BR was not protected from unfair dismissal on the basis that she was engaged as a casual but not on a regular and systematic basis.

She had taken several periods of approved lengthy absences before returning to work in April 2023, where she continued working monthly until her dismissal, albeit with different hours worked per week.

After reviewing her employment record and consistent with recent cases, the Deputy President concluded that her pattern of employment was sufficient to be regarded as regular and systematic.

Initial concerns with her performance were raised on 22 August 2023 in a meeting between BR and Dolphin’s Operations Manager and General Manager. They raised concerns about what was described as a change in her behaviour that involved ignoring management decisions or requests and receiving complaints from customers.

At the meeting, she did not challenge that there had been a decline in her performance but attributed it to the recent passing of a co-worker. She acknowledged that she was underperforming but committed to improving her customer relations.

On 31 October 2023, she attended a bar supervisors’ meeting that reinforced the businesses’ focus on improving customer standards, quality of service and being seen as one team, supporting management decisions.

Following this meeting, it was reported by several staff that she had posted on the Dolphin Fam Bam (Facebook Chat) criticisms of management. She was spoken to about appropriate social media use but continued to use the platform to vent her own largely negative opinions about management.

Around 9 November 2023, she began excluding certain employees whom she considered ‘managerial’ from the Staff Group Chat on WhatsApp. She then posted several comments that management considered to be inciting a negative and combative environment amongst the team and encouraging them to do the same.

The following day, she was asked to meet with the General Manager. At the meeting, he told her that her continued decline in behaviour and attitude could no longer be accepted; he referred to the social media posts and subsequently provided her with a letter of termination.

In Deputy President Cross’ view, BR had acted entirely inappropriately. He had no doubt that she was aware of her employer’s concerns, particularly in relation to her social media posts undermining management, but she ignored these warnings. He dismissed her claims that the Group Chat was a private group, separate from work.

The application was dismissed.

BR v The Trustee For the Dolphin Hotel Unit Trust (U2023/11370) 10 March 2024

For queries about employee counselling, social media, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 460.0924